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COA decides eminent domain case

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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.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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