Justices rule in favor of sewer facility operator in condemnation action

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A case involving a compensation award for condemnation initiated by Fort Wayne’s Board of Public Works that may appear at first blush as a “no brainer” is actually not as simple as it seems, the Indiana Supreme Court pointed out Thursday.

At issue in Thursday’s decision in Utility Center, Inc. d/b/a Aqua Indiana, Inc. v. City of Fort Wayne, Indiana, 90S04-1208-PL-450, is the scope of judicial review when a property owner challenges the compensation awarded for condemnation of its property by a city’s board of public works under an eminent domain statute applicable to cities and towns.

Utility Center Inc. owned and operated certain water and sewer facilities in Fort Wayne. In 2002, the city’s Board of Public Works passed a resolution to condemn the facility’s north system. Utility Center challenged the condemnation, which was ultimately affirmed by the Indiana Supreme Court in 2007.

Afterward, Utility Center filed a written remonstrance with the board challenging the $16.9 million assessment of damages, which the board confirmed. Utility Center appealed to the trial court and sought a jury trial. The city moved for partial judgment on the pleadings on the grounds that the trial court was limited to a review of the record before the board. The trial court ruled in favor of the city.

I.C. 34-24-1 and -2 deal with eminent domain procedures; Chapter 2 deals with proceedings initiated by a municipal works board. The board initiated the proceedings under Chapter 2 in this case.

“At stake in this case is what does it mean to say, in the context of a Chapter 2 eminent domain proceeding, that ‘[t]he court shall rehear the matter of the assessment de novo.’ More precisely: What did the Legislature intend in this context? The City argues the trial court is limited to a review of the record before the Board. Utility Center counters the trial court’s review includes a full evidentiary hearing before a jury,” Justice Robert Rucker wrote.

“In short our courts have long held that judicial review of administrative decisions is restrained and limited, even where statutory language suggests otherwise. However, the question remains whether the Legislature intended this limited review under the facts presented here,” he continued.

Rucker pointed out that eminent domain statutes must be strictly construed as to the extent of power and the manner of its exercise. Also, the inviolability of private property has been a central tenet of American life since before the country’s founding.

“Because the determination of just compensation is a judicial rather than a legislative function, … and recognizing the extent to which protecting the ownership of private property is woven into the fabric of our jurisprudence, we are not persuaded the Legislature intended a limited role of the judiciary when declaring that an aggrieved party may ‘take an appeal’ of the compensation awarded by an administrative municipal board and that ‘[t]he court shall rehear the matter of the assessment de novo . . . .’ I.C. § 32-24-2-11(a). Rather we are convinced the opposite is true,” he wrote.

The justices concluded that “rehear the matter of the assessment de novo” contemplates a new hearing with trial and judgment as in all other civil actions, and a trial by jury where a party so requests.

The case is remanded for further proceedings.



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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.