Do-over eminent domain opinion yields same result

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The Court of Appeals of Indiana has released what it is calling a “substitute opinion” in the dispute between a property owner and the Gary Housing Authority, but while the court clarified one of the issues being reviewed, the outcome remained the same.

In its Nov. 10 ruling, the appellate panel found the Lake Superior Court erred in granting summary judgment to the housing authority claims by 624 Broadway, the property owner, under the administrative taking provision in Indiana Code sections 32-24-2-1 to -17, also known as “Chapter 2.”

The Dec. 27 opinion holds the trial court erred in granting summary judgment to the housing authority on 624 Broadway’s claim “that it had been denied proper notice.”

Still, the Court of Appeals reached the same conclusion.

“Thus, we reverse the trial court’s judgment and remand with instructions for the court to enter summary judgment for 624 Broadway on its claim that the Gary Housing Authority’s administrative taking and valuation of the property violated 624 Broadway’s right to notice, to vacate the Gary Housing Authority’s administrative taking and valuation of the property, and to hold any further proceedings that are consistent with this opinion,” Judge Paul Mathias wrote for the court in the ruling in 624 Broadway, LLC, v. Gary Housing Authority, 21A-CT-653.

According to a Dec. 2 order from the appellate court, the Nov. 10 opinion was withdrawn and vacated. No reason was given and the Court of Appeals did not response to a request further information by IL deadline.

The Nov. 10 opinion in the eminent domain fight is no longer accessible on the court’s docket. However, has the first opinion available.

A difference between the two opinions is in the fourth issue raised for appellate review.

In the November ruling, the appellate court stated the issue as “Whether the Gary Housing Authority’s exercise of eminent domain over 624 Broadway’s property denied 624 Broadway of the notice and opportunity to be heard required under Indiana Code section 32-24-2-6 and -8.”

In the December ruling, the fourth issue was stated as, “Whether the Gary Housing Authority provided 624 Broadway with the notice to which 624 Broadway was constitutionally due in the Gary Housing Authority’s exercise of eminent domain.”

The court agreed in both rulings with 624 Broadway on issue number four. However, in the Nov. 10 opinion, the panel concluded the substance of 624 Broadway’s claim and appeal were within Chapter 2.

“As our supreme court has stated, ‘constitutional issues are to be avoided as long as there are potentially dispositive statutory or common law issues ….,” Mathias wrote, citing Edmonds v. State, 100 N.E.3d, 258, 262 (Ind. 2018). “As we conclude that 624’s Broadway’s procedural arguments are dispositive under Chapter 2, we need not consider the parties’ constitutional arguments.”

In the Dec. 27 opinion, the Court of Appeals found the housing authority had not followed proper notice to 624 Broadway of both the taking and the valuation of the property.

“The Gary Housing Authority knew the name and address of 624 Broadway’s registered agent, (John) Allen,” Mathias wrote. “Indeed, in its initial attempts to exercise eminent domain under Chapter 1, the Gary Housing Authority had no issue providing Allen with actual notice. Yet, one the Gary Housing Authority initiated its proceedings under Chapter 2, it ceased attempting to provide Allen with actual notice. Instead, the Gary Housing Authority simply relied on notice by publication.

“Under the circumstance, the Gary Housing Authority’s use of notice by Publication was not reasonable calculated to reach Allen,” Mathias continued. “Rather the Gary Housing Authority’s use of notice by publication was a ‘mere gesture, [which] is not due process.’”

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