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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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