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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues