ILNews

COA decides eminent domain case

Back to TopCommentsE-mailPrintBookmark and Share

In considering a common arrangement between a utility company and property developer, the Indiana Court of Appeals has given a green light for that utility to exercise eminent domain when a developer is financing a sewer line extension to a proposed housing development.

Attorneys disagree about the impact and significance of today's ruling in Wymberley Sanitary Works v. Earl L. Batliner, Jr., et al., No. 22A01-0802-CV-55, a unanimous decision in favor of the public utility doing business as Aqua Indiana. Those on the prevailing side say it reaffirms state and national caselaw and covers what is already practiced, while those on the other side describe this as a case of first impression that effectively eliminates landowner rights in condemnation actions.

That importance could ultimately be decided by the Indiana Supreme Court if appellate attorneys decide to file a transfer petition and should the justices decide to weigh in on this Floyd Circuit case that goes back to a proposed development about five years ago.

A developer in 2004 had approached Wymberley about the utility extending sewer service to its proposed subdivision, and the utility obtained regulatory permission the following year and entered into an agreement with the developer. In the meantime, the developer began negotiating with landowners for the needed right-of-way easements, but those discussions ultimately failed and four eminent domain complaints were filed against the landowners.

In December 2007, a special judge dismissed the public utility's eminent domain complaints by finding that Wymberley didn't adequately present a need for the eminent domain or the needed land, that it acted in bad faith in trying to acquire the easements, and that it wouldn't be for public use. But the Court of Appeals reversed most of the trial court conclusions, holding that the judge erred in finding that Wymberley made improper offers or acted in bad faith, that the proposed takings weren't for public use, and that there wasn't a current need for the takings.

Relying on the Supreme Court of the United States case of Kelo v. City of New London, 545 U.S. 469 (2005), the Indiana panel found that Wymberley's taking would not be transferring the property to a private entity but to a regulated public utility providing public service - not as far as the SCOTUS ruling had allowed.

"The court's decision is clearly in the mainstream, not on the outer edges of eminent domain authority, and proves the common practice by which developers pay for utility service connections," said Baker & Daniels attorney Jon Laramore, who represents Wymberley. "They've clearly said that sewer service is a traditional public purpose, even if there's some additional private benefit to the developer."

But Bose McKinney & Evans attorney Bryan Babb, who represents the landowners in this case, said this ruling is one of first impression on various fronts and means that property owners have no protection in condemnation actions.

"If ever we were going to provide some measure of protection, then it was this case," Babb said. "There are no protections for landowners if this ruling stands. The Supreme Court needs to decide on this, if it believes there's going to be limits on what condemning authorities can do. This is the time, because after this there are no limits."

Several groups are amicus parties in this case: Indiana Energy Association, Indiana Association of Sewer Cos., Indiana Agricultural Law Foundation, and the Institute for Justice.

Attorneys have 30 days to file a transfer petition with the Indiana Supreme Court. If that isn't done, then this ruling would be certified and classified as the final judgment on this case. Babb said no decision has been made on that move and he hadn't discussed this ruling with his clients yet. He said he will likely advise them to consider filing that petition.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT