Zoning and the Taking of Landowner Property
Schu v. State Example
An often overlooked consequence of government action is how zoning ordinances may affect a property owner. In some instances, the change in how a zoning ordinance affects a landowner may create a situation where the government has effectively “taken” the property by eminent domain.
A landowner can seek compensation in an eminent domain context where a zoning ordinance or other state action creates a substantial interference with private property and destroys or impairs a person or entity’s right to freely use and enjoy the property, along with the rights and interest in the property. State v. Jordan’s Pharmacy, 215 N.E.2d 32 (Ind. 1966). Several courts in Indiana have held that damages which result from an eminent domain appropriation which cause a property to be in violation of applicable zoning ordinances are compensable. See e.g., State v. Stefaniak, 238 N.E.2d 451 (Ind. 1968).
In Schuh v. State, 241 N.E.2d 362 (Ind. 1968) the court held that when an eminent domain taking placed a property owner’s building in violation of applicable zoning ordinances, a taking occurred and the property owner should have been compensated for the building. In Schuh, the State of Indiana condemned a strip of land in order to widen a highway. The widening of the highway caused a building on the property owner’s land to be situated closer to the highway than allowed by zoning ordinances. The landowner was not permitted to commence any new construction on the property until the building in violation of the zoning ordinance was torn down. Thus, the Court determined that the property owner should have been compensated for the value of the building as part of the damages resulting from the condemnation of his property because the property owner was no longer able to enjoy his right to freely use and enjoy the property.
In summary, when an eminent domain taking causes a property or buildings on a property to be in violation of applicable zoning ordinances, the fair market value of the entire building or property is included in the damage computation in the Court’s determination of compensation for the take.
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Eminent Domain & Condemnation Articles
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24 May 10
I 69 Road Project Picking Up Speed
Acquisition on the I 69 road project is moving fast. Recently, the Governor, Mitch Daniels instructed INDOT to “fast-track the project to take advantage of the cheaper prices.” Original completion of the first three sections of the interstate, from Evansville to Crane Division, Naval Surface Warfare Center, was scheduled for 2015; however, low construction bids, driven by the suffering economy, have cut projected costs by 25%, allowing D... (Read More)
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04 May 10
I 69 Update
Sources indicate that many landowners are starting to receive offers in section 2 of the I 69 project. This includes landowners in the Washington and Oakland City areas. We represent numerous land owners on the I 69 project and are currently conducting site visits, taking photographs, developing compensation theories and arranging our appraisal team for our clients. After spending some time working on these issues we have identified sever... (Read More)
