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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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