1) Get in the “know zone.” To often landowners will settle their case without “knowing” the true value. Many landowners think that know how much they should receive in compensation but in almost every case they are wrong. As we tell our clients, the typical landowner doesn’t know enough about how they should be compensated to make an intelligent decision. This failure to get into the “know zone” can sometimes be disastrous. Imagine not “knowing” and settling your case for hundreds of thousands if not millions of dollars less than what you were entitled to.
So how do landowner’s get into the “know zone.” Affected landowners that have offers can contact our office at any time. We will quickly arrange a meeting and provide our initial opinion as to the State’s offer free of charge. With our years of experience handling eminent domain cases we can quickly and efficiently evaluate the State’s offer. If the State’s offer appears to be low we will then recommend that you engage our firm to provide you with the right compensation figure. Remember this is your only opportunity to be compensated for this taking. When dealing with such significant impacts to your land and future it only makes sense to get into the “know” zone.
2) Don’t get in a rush. For most landowners the taking represents a significant impact to their land. Compensation could run from the hundred of thousands to millions of dollars. When involved in any complicated condemnation process TAKE YOUR TIME and get into the KNOW ZONE! The State wants to speed up your decision making process so that you don’t make good decisions and don’t take the time to properly evaluate your case. A hasty decision by a landowner in this situation is almost always the wrong decision. If they threaten condemnation LET THEM! You can still settle your case at any time during the condemnation proceedings. In fact there are procedural safeguards that are involved in the condemnation process that you may want to utilize to get the compensation you deserve. For more information on this see our video on the condemnation process.
If you would like more information about condemnation and the I 69 project specifically feel free to contact our office at any time at 1-888-318-3761 or visit us on the web at www.severstorey.com.
Phil Sever
]]>Summary of State of Indiana v. Gordon Smith and Joan Smith, et al.
381 N.E.2d 873 (Ind. Ct. App. 1978)
In the mid-1970s, the State of Indiana constructed an access ramp for Interstate 65, subsequently reducing the width of Market Street in downtown Indianapolis. Modern Photo Offset Supply Company, a business located in the area, often utilized an alleyway off of Market Street. However, when the State created its access ramp and narrowed Market Street, Modern Photo’s delivery trucks were no longer able to maneuver into the alleyway. The company had a conference with representatives from the Indiana State Highway Commission. And in June of 1975, the Commission prepared to acquire a tract of land, deemed “parcel #4”, which would make it possible for Modern Photo’s trucks to once again use the alleyway off of Market Street. The Commission, and ultimately the State of Indiana, attempted to acquire ownership of parcel #4 from private landowners through its power of eminent domain.
There was one problem, however. Under the laws of Indiana, the State may only acquire land through eminent domain for a “public use.” The private landowners argued that the attempted taking by the State was for a private use, in essence, for Modern Photo’s delivery trucks.
The State, on the other hand, cited to prior case law, specifically Andrews v. State, 229 N.E.2d 806 (1967). The Court in Andrews held that “providing a service road to a land-locked owner. . . would reduce the damages payable to that owner and therefore would constitute a public use.”
The Indiana Court of Appeals upheld the lower court’s determination, siding with the private landowners in ownership of parcel #4. The Court distinguished the case at hand from Andrews. It noted that the State became interested in parcel #4 only after Modern Photo talked with representatives from the Commission and then it established dimensions for the take based on the dimensions of semi-tractor trailers as used by Modern Photo. Also, the Court reaffirmed private property as “an integral part of the freedom, security and independence we enjoy.” It further stated that “[t]he State must not capriciously resort to the power of eminent domain when other suitable and perhaps less expensive alternatives are available to contend otherwise is to repudiate our time honored concept of private property and the paramount value we place upon it.”
Liz Currid
]]>I had an opportunity to speak with land agents for the State. They indicate that assuming no more work needs to be done on planning for the new alternate route that right of way acquisition should occur near the end of 2010. Several land owners presented concerns regarding access issues and drainage.
One glaring omission made by INDOT during their presentation was the failure to inform landowners that they could seek their own opinion as to the value of the taking and to present that opinion in trial.
Finally, the maps provided by INDOT were fairly substandard. Representative indicate that better maps will be provided on their website.
For some residents an action for inverse condemnation may be appropriate in this project. Inverse condemnation is a type of lawsuit generated by a landowner where they argue that government action has affected the value of their land.
For more information on inverse condemnation or this project please feel free to call us at 1-888-318-3761 or email me directly at phil@severstorey.com.
We will keep you informed as this project progress.
Phil Sever
]]>According to local sources, the most predominate mineral in the local area is coal. Peabody owns most (if not all) of the rights to the coal in the local area. Peabody is the largest coal company in the country and owns the Frisco/Black Beauty mine near Oakland City.
Some individuals affected by the I 69 project have transferred their coal rights to Peabody directly. In these instances, Peabody usually takes a 10 year ownership right with a royalty share that is allocated to the landowner. The royalty is typically based off of the price of the coal extracted from the landowners property.
If a landowner has a royalty lease with Peabody there are two important questions that must be answered as part of the taking for the I 69 project. First, how will the taking affect my royalty income. Second, how will the taking affect access to coal deposits on my land. If either income or access is affected then landowners must seek compensation for their losses.
Our firm is in direct communication with Peabody and the State of Indiana regarding these issues on behalf of our clients. In addition, we are already mobilizing resources that will allow us to properly value coal rights of affected owners. We will continue to provide updates as more information becomes available.
If you have questions about how your mineral rights will be affected by the I69 project please call us for a free consultation at 888-318-3761 or visit us on the web at www.severstorey.com.
Phil
]]>Answer: Yes, but the State must follow certain rules. The Uniform Relocation Act provides that landowners cannot be required to move permanently until: (1) at least one comparable replacement dwelling has been made available and the landowner has been informed of its location; (2) sufficient time has been provided to negotiate and enter into a purchase agreement or lease for replacement housing; (3) assurance has been provided of receiving relocation assistance and acquisition compensation to which the landowner is entitled; and (4) at least ninety (90) days advance written notice has been provided before being required to move.
Question: If I am moved from my property by eminent domain are there any relocation benefits that I am entitled to?
Answer: The Uniform Relocation Assistance and Real Property Acquisition Policy Act (Uniform Relocation Act) was drafted in order to provide certain benefits and protections for persons displaced by highway projects which are entirely or partially funded by the Federal Government and the Department of Transportation. Under the Uniform Relocation Act, individuals, business owners, and residential owners who are displaced because of a project are provided payments and services to assist them in moving.
Question: What type of relocation payments or reimbursements are available?
Answer: Landowners who are displaced by eminent domain are entitled to certain reimbursement and payments not to exceed a total of $22,500 unless special circumstances exist. These reimbursement and payments vary depending on the type expense. The following is a list of those items that most landowners should be aware of when talking to the State about relocation payments and benefits.
1) Relocation expense money can be used to pay the costs associated with moving the landowner.
2) In some instances a landowner may be entitled to a Price Differential Entitlement If a comparable replacement dwelling costs more than the value of the landowner’s current dwelling, the landowner may be entitled to a payment of the difference.
3) A landowner could be entitled to an Increased Interest Payment. In this situation, the displaced landowner may be reimbursed for increased costs when the replacement mortgage bears a higher interest rate than the displaced landowner’s previous mortgage.
4) Landowners are further entitled to Incidental Expenses. This payment is made for the reimbursement of costs incurred incidental to the purchase of a replacement dwelling. Examples include: title searches, legal fees, credit reports, title insurance, preparing of conveyance instruments, and moving fees.
Keep in mind, these amounts should be added on top of the State’s offer and there may be additional payments not covered in this article that landowner’s are entitled to. Relocation benefits can change substantially if you are dealing with business property.
If you have a question about relocation benefits, or eminent domain/condemnation in general please feel free to contact us for a free consultation at 1-888-318-3761 or on the web at www.severstorey.com
]]>The first stop will be in Walkerton, Indiana on February 25th at 7:00 p.m. at Club 23 Pizza, 407 Indiana Street, Walkerton IN. At this meeting we will be discussing condemnation and how it interacts with the West York Project.
Our second stop will be in Washington Indiana on March 2nd at 6:00 p.m. at the Washington Carnegie Library, 300 West Main Street, Washington, IN 47501. At this meeting we will be discussing the impacts of the I-69 road project and how it will affect residual values and mineral rights.
These meetings present an excellent introduction to the eminent domain and condemnation process. For more information contact Sever Storey at 888-318-3761 or on the web at www.severstorey.com.
]]>1) Can the State take my land? Yes, the State has been granted the power of eminent domain by the constitution. Stopping the taking is next to impossible.
2) Do I have to take the State’s offer? No, you do not have to take the State’s offer. You have the constitutional right to present your own evidence at trial as to how much you should be compensated.
3) Can the State Land Lock part of my parcel? Yes
4) If they landlock my parcel do they have to provide access? No, the State is not required to provide access to a landlocked parcel. They are only required to pay “just compensation.” Note: just compensation will be a very important issue if the parcel is landlocked.
5) What about my mineral rights? Your mineral rights are very important. If the take damages your mineral rights you must be compensated for them. Note: mineral rights could be worth more than the actual land taking itself.
6) What about drainage? They are turning my land into a flood plain. Typically, the State will not re mediate flood issues. It again comes down to an issue of compensation and how the land is damaged.
If you have any questions about the I-69 taking , condemnation or eminent domain please feel free to call us for a free consultation or visit us on the web at www.severstorey.com
Phil Sever
]]>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.
]]>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.
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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.
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