There is a public meeting tonight scheduled for the I 41 construction project.

According to notices received by our office from INDOT:

“The Indiana Department of Transportation (INDOT) will hold a public hearing on Thursday, April 15, 2010 beginning at 5:00pm with an informal Open House Session, followed by the formal public hearing beginning at 6:00pm. The public hearing will be held in the auditorium at Terre Haute South Vigo High School, located at 3737 South 7th Street in Terre Haute.  The project includes the construction of a new four-lane, full access control roadway connecting US 41 southeast of Terre Haute to I-70 east of the city.  The new roadway will begin at a new interchange on US 41 near Bono Road and will proceed north east from US 41 towards I-70.  The project is approximately 6.2 miles in length and separated into the following four segments:  PHASE I from US 41 to Woodsmall Road; PHASE II from Woodsmall Road to northeast of Feree Road; PHASE III from northeast of Feree Road to east of Riley Road; and PHASE IV from east of Riley Road to I-70 interchange.  Construction of this proposed project may require approximately 190 acres of right-of-way with approximatley 19 displacements.  Construction is anticipated to begin 2011/2012 and would continue over the course of two construction years. ”

Attorneys from Sever Storey will be present to ask questions on behalf of its various clients.  If you are in attendance and wish to ask questions to a landowner’s attorney please feel free to introduce yourself.

I will follow up with notes from the meeting in tomorrow’s blog.

Phil Sever

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags attorneys, condemnation, eminent domian, I 641, I641, INDOT, law firm, lawyers, Right of Way, sever, storey, Takings

In a recent 9th Circuit Court of Appeals ruling the Court held that the anti racketeering statute RICO could be utilized against a government agency that failed to disclose documents in the condemnation process. See Kearney v. Foley, 582 F.3d 896 (9th Cir.)

The facts that gave rise to the Court’s finding are straight forward. Kearney was the owner of a 52 acre parcel in California. In 2000, the Government decided to take the property using condemnation. An engineering firm was hired to conduct septic testing on the land. After conducting the testing Kearney’s attorneys made several requests for the test results. No test results were ever produced. At trial the condemner’s attorneys indicated that no testing had been performed.

The State offered to pay $850,000.00 and Kearney asked for $1.4 million. Kearney’s demand was based primarily on her own expert’s testimony about septic testing. The jury awarded $953,000.00.

Following the jury’s decision Kearney was able to finally gain access to the testing results. In Kearney’s opinion these results supported a much higher valuation. After being denied remedies at the State Court level she brought an action alleging RICO violations. In short she alleged that the government intentionally withheld the test results and that she would have received a larger award if the results had been properly put before the jury.

The Court held that the Government was traditionally immune from these types of actions. However, an exception to the general rule exists that would allow liability to accrue to the government where it made intentional misrepresentations or unlawful methods of advocacy. The Appellate Court went on to order that Kearney should be entitled to a jury decision on whether the failure to produce the test results by the government rose to such a level.

If you have questions about this article or eminent domain and condemnation proceedings in general feel free to give one of 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 attorneys, condemnation, eminent domain, law firm, RICO, Sever Storey

Landowners facing the possibility of an eminent domain proceeding should be careful to consider all aspects of their property. This includes often valuable, and commonly overlooked, natural materials present on the property. Specifically, this may include mineral deposits, sand, gravel, timber, etc.

Indiana case law holds that, when the government takes an individual’s property through its power of eminent domain, it also has taken control of the materials present on the land. As a result, courts have held that the existence of such materials in an individual’s land may potentially be taken into consideration in determining the value of that land. The presence of such valuable assets, such as mineral deposits, may make a drastic difference in the amount the government is required to compensate a landowner for his or her property.

In the past, the government has consistently taken advantage of people by not compensating them properly for such valuable materials. For example, when the cities of Dallas and Fort Worth acquired land for the Dallas-Fort Worth Airport through eminent domain in the 1960s and 1970s, it has been reported that few landowners even included mineral rights in their just compensation calculations. According to Fort Worth’s land manager at the time, “nine out of 10 people wouldn’t even know what you were talking about with mineral rights.” Now, these same mineral rights are worth millions of dollars. For instance, the Chesapeake Energy Corporation paid $185 million, with a promise to pay 25% of all future gas royalties. It is important to note that the original property owners received no money from the Corporation.

In order to avoid such an egregious result, it is strongly recommended that a landowner contact an attorney, especially one well-versed in eminent domain law and mineral rights.

By Liz Currid, Sever Storey Associate Attorney

If you have any questions about this article, mineral rights, eminent domain or condemnation please feel free to contact one of the attorneys at Sever Storey for a free consultation at 1-888-318-3761 or on the web at www.severstorey.com.

Author Phil Sever
Posted in Eminent Domain & Condemnation
Tags attorneys, condemnation, eminent domain, law firm, lawyers, liz currid, mineral rights, Sever Storey

About three weeks ago we made arguments in the Hancock Circuit Court that where a INDOT taking forces a landowner out of compliance with local zoning ordinances the landowner must be compensated.

The factual basis for our argument involved set backs. In almost every city and county in Indiana (and throughout the country) local zoning laws require that structures be “set back” from the road way. In the instant case, the State of Indiana is expanding the roadway. Due to this expansion our client’s home would no longer be “set back” far enough from the new road to comply with local zoning.

After arguments and briefs here is what the Court said:

“..The Court acknowledges that the partial taking results in placing the homeowner’s property in violation of Hancock County Zoning. This results in damage to the remainder and will be treated as a question of fact for the jury.”

As we have stated before, this a powerful argument for compensation that all landowners and their attorneys should utilize.

If you have any questions about set backs, zoning, condemnation or eminent domain please 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 attorneys, condemnation, eminent domain, law firm, set backs, Sever Storey, zoning

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