OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 64 Bill Analysis
135th General Assembly
Click here for H.B. 698’s Fiscal Note
Version: As Introduced
Primary Sponsors: Reps. Kick and Creech
Effective Date:
Andrew Little, Attorney
SUMMARY
 Voids appropriations (the taking of property through eminent domain) that do not
follow statutorily mandated procedures.
 Increases the taking agency’s (the government or private entity appropriating property)
burden of proof in appropriation proceedings.
 Narrows factual presumptions made in favor of taking agencies in appropriations
proceedings.
 Excludes the use of property as a recreational trail as a “public use” for which property
may be appropriated.
 Prohibits a taking agency from reducing any offer it makes in an effort to acquire
property, if the attempts may result in appropriations proceedings, or subsequently
arguing for a lower valuation in an appropriation proceeding.
 Expands required attorneys’ fee, cost, and expense awards due to property owners in
appropriation actions.
 Allows property owners who allege their property has been appropriated outside of the
required judicial process to sue for inverse condemnation.
 Requires courts hearing inverse condemnation cases to award successful property
owners attorneys’ fees, costs, and expenses.
 Requires courts hearing appropriations cases to award property owners damages if the
taking agency uses coercive actions.
 Lengthens certain appropriation proceeding deadlines.
March 3, 2023
Office of Research and Drafting LSC Legislative Budget Office
DETAILED ANALYSIS
Under the Ohio Constitution, the government has the power to take private property for
public use, but must pay a fair price if it does.1 This power is commonly referred to as “eminent
domain.” The bill makes several modifications to the law governing eminent domain.
Background – terminology and procedure
As used in continuing law and for the purpose of this analysis, the use of eminent
domain is called an appropriation. Appropriations may be carried out by public or private
actors that have constitutional authority to carry them out, or that have been granted that
authority by state law. Entities with the power to appropriate property are referred to as
agencies or taking agencies.2
Under continuing law, agencies seeking to acquire property, and willing to appropriate
it, must first make every reasonable effort to acquire it through negotiation.3 In those
instances, the appropriations procedure may follow this general path:
 The agency must give the property owner notice that it intends to acquire the property,
or an easement across the property, and that it will be presenting a written offer based
on the agency’s determination of the property’s value.4
 Before negotiations begin, the agency usually must have the property appraised, and
the owner must be given a reasonable opportunity to accompany the appraiser during
the appraiser’s inspection;
 The head of the agency must determine what he or she considers just compensation for
the property. That must be at least as much as the appraisal, and the agency head must
make a prompt offer. The offer must be in writing and include a summary of the basis
for determining the amount (see “Initial offer,” below).5
 The owner must be given a reasonable opportunity to consider the offer, present
material relevant to the property’s value, and to suggest modifications to the proposed
terms of the acquisition, and the agency must consider the information and
suggestions.6
 If the agency and the owner are unable to agree on a voluntary purchase and sale:
1 U.S. Constitution, Amendment 5 and Ohio Constitution, Article I, Section 19.
2 R.C. 163.01(C); R.C. 163.041 and 163.63, not in the bill.
3 R.C. 163.01(A) to (C), 163.04(D), and 163.59(A).
4 R.C. 163.041, not in the bill.
5 R.C. 163.59(C).
6 R.C. 163.59(C) and (D).
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 At least 30 days after the initial notice given to the property owner and delivery of
the good faith offer to purchase, the agency may file a petition to appropriate the
property in the court of common pleas or probate court in the county where it is
located.
 The property owner may file an answer to the petition. The answer must contain a
general or specific denial of any point in the agency’s petition which the owner does
not admit. In general, if the owner chooses to deny the agency’s authority to make
the appropriation, the inability to agree on a voluntary purchase and sale, or the
necessity for the appropriation, the owner must do so specifically.
 If the agency’s authority to appropriate the property, the validity of the public use,
or the necessity of the appropriation for that public use are denied, the court
resolves those issues. If the amount of just compensation is at issue, a jury
determines the amount required (see “Burden of proof” and “Case timing,”
below).7
The bill makes an agency’s failure to follow the required procedures a reason to void an
appropriation, restricts the ability to use eminent domain for recreational trails, changes
requirements for agencies’ initial offers and expands the legal effect of those offers. It also
changes the burden of proof in appropriation proceedings and makes provision for a procedure
called “inverse condemnation,” which applies when an agency appropriates property without
instituting appropriation proceedings and obtaining a court order.
Failure to follow procedure
In 1971, Ohio adopted a series of statutes in response to the Federal Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970.8 Those statutes contain a set of
policies and procedures that apply when attempts to acquire property may result in the use of
eminent domain, and largely mirror provisions of the federal act.
They include the requirement that heads of taking agencies make reasonable efforts to
acquire property by negotiation, the requirement that property be appraised before an initial
offer and that the owner be given the opportunity to accompany the appraiser (see
“Background – terminology and procedure,” above). They also include a prohibition
on certain coercive actions (see “Damages for coercive actions,” below) and other
provisions. Under current law, an agency’s failure to abide by those policies and procedures
does not affect the validity of the appropriation. Under the bill, it voids the appropriation, and
gives the property owner a cause of action against the agency, i.e., a claim that may be brought
in a lawsuit.9
7 R.C. 163.04(A) and (B) and 163.09(A) and (B); R.C. 163.05 and 163.08, not in the bill.
8 Section 3 of H.B. 295 of the 109th General Assembly of Ohio; 61 United States Code (U.S.C.) 4651.
9 R.C. 163.52.
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Recreational trails
Appropriation proceedings may only be used to acquire property for public use. The bill
excludes the use of property for recreational trails from the meaning of public use.
A recreational trail is a trail used for hiking, bicycling, horseback riding, ski touring,
canoeing, or other nonmotorized forms of recreational travel.10 The bill also narrows an existing
provision of law that presumes that making and repairing roads is a public use. Under the bill,
making and repairing roads specifically excludes the making or repairing of, or access
management for, shared-use paths, bike paths, or recreational trails.11
As a result, under the bill’s provisions, appropriation proceedings may not be used to
acquire property for use as a recreational trail, though agencies may still use negotiation to
acquire such property (see COMMENT, below).
The initial offer
Under the bill, the amount of an agency’s initial offer to acquire property by negotiation
cannot be reduced or revoked. The agency may increase the offer, but if it does, the higher
offer may not be reduced or revoked. The highest offer also sets the minimum award of
compensation to the owner if the agency ultimately brings a successful appropriation
proceeding. In that case, the agency may not argue, or present evidence to show, that a lower
amount is justified.
This is a departure from current law, which allows agencies to revise their offers before
filing an appropriation petition if they discover conditions that could not reasonably have been
discovered at the time of the initial offer or upon the exchange of proposals between the
agency and owner.
The bill also prohibits agencies from making any offers that are not in writing. Current
law requires initial offers to be in writing, but is silent on the form of subsequent offers.12
Burden of proof
When appropriations proceedings are filed, the taking agency has the burden of proof in
most cases, though the burden may fall to the property owner under certain circumstances. For
instance, the agency has the burden to show that the appropriation is both for a public use and
actually necessary for that public use.
Burdens of proof vary in their requirements. The lowest burden, proof by a
preponderance of the evidence, requires evidence showing something is more likely than not. A
burden of clear and convincing evidence requires evidence that justifies a firm belief or
conviction. The highest burden, beyond a reasonable doubt, requires evidence that leaves one
10 R.C. 163.01(H)(2).
11 R.C. 163.02(H)(3) and (N).
12 R.C. 163.04(B), with conforming changes in R.C. 163.21 and 163.59(E).
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with no sense of real possibility that something is not true, and is typically reserved for criminal
cases.13
The bill changes the burden of proof applied to questions of public use, the agency’s
authority to appropriate property, the agency’s and property owner’s inability to agree on a
voluntary sale, and the necessity of an appropriation.
Public use
Under current law, a taking agency must prove that an appropriation is for a public use
by a preponderance of the evidence. The bill increases the burden of proof from a
preponderance of the evidence to clear and convincing evidence.14
Authority, inability to agree, necessity
If the property owner files an answer to an agency’s petition for appropriation and
specifically denies the agency’s authority to make the appropriation, the inability of the parties
to agree on a voluntary purchase and sale, or the necessity of the appropriation, the court will
make a determination on those matters. Under current law, it is the agency’s burden to prove
them by a preponderance of the evidence. The bill increases the burden of proof to clear and
convincing evidence.
It also eliminates two rebuttable presumptions in favor of taking agencies from the law,
and limits a third. Rebuttable presumptions presume a fact in favor of one party, but allow the
other party to present evidence disproving that fact. The first eliminated presumption creates a
rebuttable presumption that an appropriation is necessary if the agency’s governing body,
council, or board adopted a resolution or ordinance declaring its necessity. Provided, however,
that the presumption does not apply to property being taken because it is a blighted parcel or
part of a blighted area. The second presumes the necessity of an appropriation in favor of a
public utility or common carrier that presents evidence supporting that necessity.
The provision limited currently creates an irrebuttable presumption that an
appropriation is necessary if the taking agency is a common carrier or public utility and a state
or federal regulatory authority has approved the appropriation. The bill makes the presumption
rebuttable and limits it only to the specific interests in property reviewed and approved by the
regulator.15
Attorney fee and cost awards
The bill expands provisions calling for attorney fee, cost, and expense awards to
property owners in appropriation proceedings.
13 Black’s Law Dictionary 244, 698, 1431, and 1518 (11th ed. 2019).
14 R.C. 163.021(A).
15 R.C. 163.09(B)(1); Black’s Law Dictionary 1436 (11th ed. 2019).
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Under current law, if the property owner challenges the necessity of an appropriation or
whether the proposed use of the property is a public use and the court makes a determination
in favor of the property owner, in a final and unappealable order, the court must award the
owner reasonable attorney’s fees, expenses, and costs. The bill expands this provision, adding
that the ruling may be “wholly or partially” in the property owner’s favor to trigger the
mandatory fee, cost, and expense award. It also requires an award of fees, costs, and expenses
if a taking is void for failure to follow required policies and procedures (see “Failure to
follow procedure,” above).
The bill also eliminates existing law that prohibits attorney fee and cost awards,
including appraisal fees, that an owner incurred if the owner and agency exchanged appraisals
prior to the proceedings and the final compensation award is less than 125% of the agency’s
first offer.16
If an agency appeals and does not prevail, either in whole or in part, the bill requires the
court to award reasonable attorney’s fees, expenses, and costs incurred by the owner in
defending the appeal. It also requires that, in all cases where the court is required to award, or
an agency is required to pay, attorney’s fees, any fees, expenses, and costs incurred in pursuit
of the attorney fee award be included in the award.17
Finally, the bill removes a provision requiring the property owner to pay any court costs
incurred after the taking agency offers a certain amount of compensation which the owner
declines, provided that the owner is later awarded less compensation.18
Damages for coercive actions
The bill requires courts hearing appropriation actions to award damages they consider
appropriate if an agency uses coercive actions at any time during the appropriations process.
The property owner has the burden to prove, by a preponderance of the evidence, that the
agency used coercive actions. Those are not defined in the bill, but an existing provision of law
prohibits heads of taking agencies from advancing the time of an appropriation, deferring
negotiations, or deferring condemnation and deposit of funds with the court for use of the
owner, or taking any other coercive action to compel agreement on price.
This new provision applies to those included in the existing provision of law, but is not
limited to them. Any claim of coercive actions must be brought in the court of common pleas in
the county where the property is located.19
16 R.C. 163.09(G), 163.21(C)(3), and 163.52(B).
17 R.C. 163.16(A) and 163.19.
18 R.C. 163.16(B).
19 R.C. 163.09(H), with conforming change in R.C. 163.59(I).
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Appellate rights
Under continuing law, property owners have the right to an immediate appeal when a
court enters an order in favor of the agency on questions of authority, inability to agree, or
necessity unless the property is taken under specific circumstances:
 In time of war or other public exigency imperatively requiring its immediate seizure;
 For the purpose of making or repairing roads open to the public without charge (see
“Public use,” above);
 For the purpose of implementing rail service.
The bill narrows the circumstance in which appeals are not allowed in appropriations cases for
the purpose of making or repairing roads by requiring the appropriation to be for that sole
purpose.20