On December 7th, 2009 the Town of Walkerton passed a resolution to acquire property for the West York redevelopment project. The West York Redevelopment project is designed to provide affordable housing for low income families and individuals.

As part of this resolution, the Town of Walkerton stated

“The area known currently as the West York neighborhood (see attached Map, attachment
1) be designated as the subject area for the Town’s acquisition activity. This subject area surrounds the Ohio Street from 800 to 1426 and is bounded on the east by Washington Street, the south by Illinois Street, the north by Park Dr. and the west by the abandoned railroad.
2. The properties within the subject area be purchased by the Town to be held until donated to the West York Redevelopment project. Purchases will be made after properties are appraised and owners notified and will be purchased in compliance with the Uniform Relocation Act and the regulations applicable to acquisition of property by a governmental agency.”

So in essence the Town is to acquire the property and then give that land to a private development corporation.  But is that really happening?

In conversations with officials from the Town of Walkerton approximately one half of the properties have been acquired to date.  This number was quickly refuted by representatives from the private developer.

Wait?  Private developer?  What does the private developer have to do with the acquisition of property?

Well maybe a lot.  Some hints have been dropped that the private developer may be making acquisition of land.  If so, do they have the constitutional authority to utilize the state power of eminent domain and are they following the statutory required guidelines for the acquisition of property by a private developer?

We are currently investigating this issue carefully.  Come back soon for updates.

Phil Sever

UPDATE:  In further discussions with the Town of Walkerton they have indicated that they are the entity solely responsible for making acquisitions.  The question remains, does the Town of Walkerton have to provide additional compensation under Indiana Statutes because the properties will eventually be transferred to a private developer.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags attorneys, condemnation, eminent domain, Indiana, lawyers, Sever Storey, walkerton, west york project

A new bill has been proposed in the General Assembly to grant pipeline companies that carry carbon dioxide the right to take private land by eminent domain.

According to sources, the proposed language for this bill would declare that carbon dioxide pipelines provide a public use and service that is in the best interests of the State of Indiana.

It is presumed that this bill is being proposed to benefit a private corporation called Indiana Gasification. Last march Governor Daniels signed laws which would assist Indiana Gasification in dealing with utilities. The newest bill is seen by some as another attempt to provide assistance to this start up business.

Of real concern to our firm is the continual erosion of the barriers for the use of the state’s eminent domain powers. In the proposal before the Indiana Assembly the powers of eminent domain would be given private enterprises so that they can make substantial profits. What is the public interest in having carbon dioxide pipelines? Is this public interest greater than the constitutional rights of Indiana Citizens to full ownership and enjoyment of their land?

Eminent domain is a significant governmental power that allows the taking of private land from citizens. In this commentators opinion the uses of eminent domain should be restricted to real public uses instead of benefiting large mulit million dollar corporations.

Justice O’Connor put it well in her dissent in the infamous Kehlo case where she articulated arguments against allowing private enterprises to utilize the government power of eminent domain,

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended that perverse result. ‘That alone is a just government’ wrote James Madison ‘which impartially secures to every man, whatever is his own’ For the National Gazette, Property (Mar. 27, 1792) reprinted in 14 papers of James Madison 266 (R. Rutland et al. eds. 1983), 545 U.S. at 505, 125 S. Ct. at 2677, 162 L.Ed. 2d.

UPDATE:  2/1/2010

Thursday, the Senate passed on a 36-12 vote legislation that will help the proposed coal-gasification plant in Rockport, Ind. will allows the proposed pipeline to use the powers of eminent domain.

.“I don’t really like eminent domain, but in this case, we’re dealing with a lot of jobs. We’re dealing with the survival of the coal industry in Southwestern Indiana,” Gard said.

Sen. Mike Delph, R-Carmel, called the bill a violation of property rights.

“Why aren’t they going to the property owners and trying to work out a deal one by one? They haven’t even tried yet, and they’re coming to government and asking for a bill for eminent domain. That’s not right,” he said.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags attorneys, condemnation, eminent domain, Indiana, pipeline, Sever Storey

On Wednesday plans were unveiled for a 1800 mile long pipeline running through the Midwest North of Indianapolis, Indiana and south of Cleveland, Ohio. The project is being backed by POET Ethanol Products and Magellan Midstream Partners in Texas. This would be the first long distance pipeline designed to carry ethanol ever built in the United States. Estimates provided by POET and Magellan indicate that the 22 ” pipeline will be ready for service in approximately four years.

It is likely that POET and Magellan will utilize the governments powers of eminent domain to acquire land for this project. Land owners should become proactive if they believe that they may be affected by this pipeline. This means landowners should attend public meetings held by regulators or the pipeline companies and gather as much information about the process as possible. Sever Storey will follow this story closely and provide updates as to when public meetings will first be held.

If you have questions about this pipeline or any other type of land taking involving utilities feel free to give us a call at 888-318-3761 or visit us on the web at www.severstorey.com.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags condemnation, eminent domain, ethanol, pipeline, POET, Sever Storey

Highest and Best Use

In federal eminent domain/condemnation cases the trier of fact must consider the property’s highest and best use when determining just compensation for the Defendant.[1] Highest and best use is defined as “[t]he highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future . . . to the full extent that the prospect of demand for such use affects the market value while the property is privately held.’”[2]

In order to demonstrate the highest and best use of the property, the Defendant merely must show that there is a reasonable probability that the land is both physically adaptable for the proposed use and that there is a demand for such use in the near future.[3] The court can only exclude evidence of the highest and best use where it has been demonstrated that the alleged use is impracticable and unreasonable.[4]

The threshold to making a highest and best use argument is not difficult to meet. For instance, in evaluating the highest and best use of the property, a court can consider a reasonable, non-speculative zoning change.[5] It should be noted that the United States Supreme Court has held “[t]he fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value.”[6]

If you have any eminent domain or condemnation questions please feel free to contact the attorneys of Sever Storey at 888-318-3761 or on the web at www.severstorey.com.

[2] Id. (quoting Olson v. United States, 292 U.S. 246, 255 (1934)) (emphasis added).

[3] United States v. 341.45 Acres of Land, 633 F.2d 108, 111 (8th Cir.1980), cert. denied sub nom. Bassett v. United States, 451 U.S. 938 (1981) (citing Olson v. United States, 292 U.S. 246 (1934)).

[4] United States v. 320.0 Acres of Land, 605 F.2d 762, 815 (5th Cir.1979) (citing Miller, 317 U.S. at 376).

[5] Id.

[6] Olson, 292 U.S. at 256 (emphasis added).

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags condemnation, eminent domain, federal court, highest and best use, Sever Storey

Residents with property affected by the installation of the I-69 highway between Marion County and Posey County can expect a knock on their door any day now from State representatives trying to acquire their land. According to public documents over 526 parcels of land need to be acquired to install the highway. Before agreeing to any settlement with the State of Indiana make sure that you have the offer reviewed by an experienced eminent domain attorney.

With so much land being taken by the State of Indiana for this project it is probably a good idea to review our landowner Do’s and Don’ts.

DO

• Ask for copies of the appraisals the government performs on your land.
• Keep all handouts or materials given to you by the government or the right-of-way agent.
• Keep any materials given to you by anyone from the government who talks to you about the possible relocation of your home, business, farm, or buildings on your property. Also keep any estimates the government may give you concerning moving expenses and replacement housing.
• Continue to maintain your property in a normal manner

DO NOT

• Do not discuss any issue pertaining to the value of your property with anyone without first consulting a lawyer.
• Do not attempt to value your property without professional advice.
• Do not provide the government with a copy of any private appraisals performed on your land
• Do not tell the right-of-way agent your personal opinion, or that of any expert you may know, concerning the value of your land or other property.

If you have any questions about this project or any other eminent domain or condemnation issue please feel free to contact us at 888-318-3761 or on the web at www.severstorey.com.

Phil Sever

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags condemnation, eminent domain, I-69, Indiana, Indiana Department of Transportation, Sever Storey

Hoosier Heartland Informational Meeting Set

There will be three public meetings set by the Indiana Department of Transportation for the Hoosier Heartlands Road Project set in January of 2010.

The Hoosier Heartlands road project is the State of Indiana’s plan for a transportation corridor that will stretch 99 miles from Lafayette to Fort Wayne.

The following is a list of the dates and locations for these meetings:

January 7^th at the Burrows Firestation Community Center at 7:00 p.m.

January 14^th at the Rockfield Community Center at 7:00 p.m.

January 26^th at the Delphi National Guard Amory at 7:00 p.m.

The attorneys of Sever Storey will be in attendance at these meetings to gather information about the project and answer land owner questions. Sever Storey represents only landowners.

For more information about this project or if you wish to speak to an attorney about representing you in a condemnation or eminent domain proceeding please feel free to call 888-318-3761 or find us on the web at www.severstorey.com.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags condemnation, eminent domain, Hoosier Heartland, road project, Sever Storey

Concerns about the Hoosier Heartland Project?

Some Cass County residents are concerned about the path taken by the Hoosier Heartland Project.  After a review of public documents it appears that in Cass County alone at least 15 land owners will have their entire parcels acquired by INDOT for the construction of this road way.  Another 33 property owners will have some portion of their land taken by eminent domain.  According, to some published reports Cass County residents are particularly concerned how the new road way will limit access to highways along some County roads.

If your property is being taken by the Department of Transportation for this project contact the attorneys at Sever Storey BEFORE accepting any offer.  In our free consultation we will provide guidance on whether you may be entitled to more compensation that what you have been offered.

If you have any questions regarding this project or any other eminent domain or condemnation issue please call Sever Storey at 888-318-3761 or visit us on the web at www.severstorey.com.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags condemnation, eminent domain, Hoosier Heartland, Sever Storey

Private Developer Uses Eminent Domain to Take the Land of Long Time Residents

Traditionally, eminent domain and condemnation constituted a government entity taking a private landowner’s property for public use.  And in turn, the government would offer the private landowner just compensation for its taking.  Unfortunately, courts have stretched this idea until it has reached an almost unrecognizable form.  For example, in a landmark case involving the town of New London, Connecticut, the United States Supreme Court held that the government could take property from landowners in a middle-class neighborhood and give it to a developer.  In making its decision, the Court noted that the government has the potentiality to exercise its power of eminent domain if a property is considered “blighted” or an eyesore in an area.

With such case law presently arising all around the country, it is no wonder that landowners in Brooklyn, New York face an eminent domain crisis of their own.  The state of New York is currently attempting to take privately-held property in the historic Prospect Heights neighborhood and transfer it to developer Bruce Ratner under the guise that the area is “blighted.”  Subsequently, Ratner wants to pump millions of dollars into his so-called Atlantic Yards project in order to build a basketball arena, high-rise residences, and commercial buildings.  Sounds nice… except for those homeowners who have pumped thousands, sometimes millions of their own dollars into the properties, and who do not possess Ratner’s political connections.

So far in the litigation proceedings, Ratner has retained the upper-hand.  New York’s highest court held in November that New York had properly exercised its power of eminent domain.  Those who are opposed to the government’s, more properly Ratner’s, seizure of property in Prospect Heights have vowed to continue fighting, even though an up-hill battle.

If you have an eminent domain or condemnation question or issue please give the attorneys at Sever Storey a call at 888-318-3761 or visit us on the web at www.severstorey.com.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags condemnation, eminent domain, kehlo, Sever Storey