Category: Indiana Eminent Domain

The Inherent Problem of Government Officials’ Property Being Acquired By The Government

A former mayoral candidate challenged the City of South Bend’s acquisition activity. Rather than having South Bend obtain his property through eminent domain, the candidate sold it to the private redevelopment agency for three times the appraisal price.

The amount the city wound up paying for this transaction raises issues of its own. To say that Mr. Curry, the unsuccessful candidate, would be unlikely to find greater political success in the future, is an understatement.

WNDU

The City of South Bend found a way to complete the Family Dollar deal, but it won’t be buying the home of former mayoral candidate Wayne Curry.

“Property rights were, as far as I’m concerned, were upheld since eminent domain was not used and it was a private purchase by the developing entity,” Curry told News Center 16 on Tuesday.

You may remember that the City of South Bend tried to take Curry’s home through the use of eminent domain, but Curry fought back by filing a civil lawsuit.

In an out of court settlement, Curry recently sold his home directly to the subdivision developer—the Northeast Neighborhood Revitalization Organization (NNRO) for $355,000.

As part of the out of court settlement, the city has dropped its eminent domain proceedings, and Curry has dropped his lawsuit.

While Curry was given a chance to buy a new home in the new subdivision, he turned that offer down.
“There are certain rules and stipulations in the new subdivision that, things I, like, like a hot tub for instance, isn’t allowed in the new subdivision…you just have a lots of rules and things I didn’t particularly care for.”

While the financial settlement will allow Curry to buy a new home somewhere in South Bend, it won’t buy him the happiness he had.

Flood Plain Protection Moves Forward in Indiana

The article below describes a growing legal battle between a farmer and a Conservancy District. Landowners claim the District is not a public entity because it does not hold meetings or office hours, among other factors. Of course, the County truly runs the District. Further, the Court has granted the District the right to enter property to establish whether it has any archeological value and would make a good flood detention area. Most likely, the District will be able to exercise taking power.

We can readily foresee water retention becoming a substantial issue with the increased rainfall and high water level along the Mississippi and its tributaries this year. Indeed, if rainfall continues to increase, eminent domain proceedings for water retention will become very frequent throughout the United States. 

News and Tribune

During the legal battle, Lewis claimed the conservancy district did not have the right to claim eminent domain because it was not meeting the requirements necessary for a public entity. It was claimed the district was not holding regular public meetings, did not have a public office and regular office hours and was failing to offer a certain level of transparency. The district also collects taxes from local residents in the area to the tune of about $40,000 per year to support its operations.

A court order recently granted entry onto the former Lewis property in order to conduct a survey and an appraisal to determine its value.

Mead said the district has the right to enter on anyone’s land to conduct surveying work in furtherance of the district. And the work had been long-delayed. He said AMEC was ready to conduct an investigation of the archeological site in 2006, but Lewis refused to grant them access to her property.

School Land for Airport

Post Trib

School officials were waiting for their attorneys to review the decision.

"(The resolution) is an option they have threatened to exercise in the past," said School Board President Nellie Moore. "If that’s what they choose to do instead of a more amicable resolution, then I have no problem with that."

School district attorney Ragen Hatcher was less diplomatic.

"I would think they would’ve at least invited a representative from the school district to the meeting," Hatcher said of the Board of Works decision.

According to the city’s resolution, the impasse comes after three years of "extraordinary good faith efforts" by the city and the airport to reach a deal with the schools.

"The action avoids any more delays to the timetable for the (runway) expansion," Curry said, "and now a court of law will determine the appropriate value of the land."


Why would a school system expect any different treatment than any other owner?  Governments rarely truly provide notice to the owners of property when it decides to utilize the eminent domain process.  However, the process in most States does require some attempt to negotiate prior to the filing of a condemnation complaint.  Indiana, where this taking is to occur, has a process.

Airport Wants School Property

 Gary Post Tribune

But the School Board — facing a fiscal deficit — wants $3.75 million for the land. That’s terribly unrealistic, even if the schools would choose to preserve the land and include it in its curriculum.

The School Board now is taking the insanity to a new level by spending $30,000 on an appraisal. It would appear the School Board knows acquisition of the land is vital is the Airport Authority, and as a result is demanding an outrageous price.

Litigating the matter isn’t the answer. That will be the case if the two sides can’t agree and the city proceeds with eminent domain, as it threatened last week.

We hope Mayor Rudy Clay steps in, brings the two sides to the table and issues the following mandate: Don’t leave the room until you have settled the matter.

What is good for the airport is good for the city of Gary, including the schools. The airport remains the city’s greatest hope for the future. Further delays would be unconscionable.

Often, we need to have the judicial system intervene on behalf of two behemoths, such as a city and an airport.  The Gary, Indiana situation above is not an exception.  The dispute involved federal funds to acquire land versus individual community vested tax dollars.  In the case of education funding, the tax dollars are usually derived from real estate assessments.  The Gary newspaper is simply way off base!

 

Developer Bails in Indiana

Indiana Business

Cleveland-based Fairmount Properties has pulled out of a $100 million redevelopment project in downtown Fishers, northeast of Indianapolis. The developer says the current state of the economy, combined with the number of homes which would need to be acquired, makes it difficult to complete the project in Hamilton County. A number of public meetings will be scheduled to receive input on the future redevelopment of the area.

 

During good times, it is often unnoticed when the public provides land to private redevelopers.  Accordingly, people are often more likely to ignore the overall likelihood the project will fail. However, what has occurred in Fishers, Indiana is but an example of what we are facing because of the present financial crunch. The ones left ‘holding the bag’ will too often be the citizens of the community who elected the public officials that made the ill founded decision.

Asking Judge to Reconsider

Indy Star

Hamilton County officials have decided they want a judge to reconsider his ruling in an eminent domain lawsuit that would provide additional parking in downtown Noblesville.

Superior Court 1 Judge Steve Nation ruled against the county in July in its attempt to obtain land through condemnation of McMillan’s Auto Care in the 500 block of Conner Street.

The judge said the county’s case was flawed because it failed to show how the property would be used or even why it was needed.

County commissioners filed a legal motion Friday to correct errors in Hughes’ ruling. Chuck McMillan, the property’s owner, has until Sept. 30 to respond to the motion.

In his initial ruling, Nation noted the county had access to 344 parking spaces leased from Riverview Hospital and said their availability made it less crucial for the county to take over the McMillan property.

 

-Governmental agencies all too frequently prevail in these uncertain cases of unknown or unjustifiable desire to take property. 

Some day, the courts will really review whether the finding of a taking is indeed an error of law or abuse of discretion, a standard that all too often leads to a result where the government is perceived to make no mistake even though there is clearly a mistake.