National Eminent Domain Blog : Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan and Washington, DC

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.

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 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!

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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.

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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.

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.

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The Indy Channel, April 20, 2008

Speedway is a step closer to making big changes near the Indianapolis Motor Speedway despite the efforts of some residents to derail the project.

Some people are upset that the Speed Zone development plan would force them off their properties.

"The unfortunate thing is that the plan that they have put together basically is a steamroller," said Danny Williams, owner of Pit Stop Liquor.
Supporters of Speed Zone said it would make the area around the speedway a more desirable destination.

"I think that the changes that we're proposing will revitalize this area," said Scott Harris, who is on the redevelopment commission.
The commission on Monday voted in favor of acquiring about 40 pieces of property to move forward with the project.

The commission will get appraisals on properties and begin negotiations with owners. If needed, officials said the town can use eminent domain to take the properties.

-Owners have built at section lines (mile roads) fully expecting a ninety degree\right angle at their property corner. Roundabouts give the historical expectation no respect. Owners get hurt, and their only recourse is Just Compensation because roundabouts are considered a public use.

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The Star Press, March 17, 2008

The state hopes to raise the bypass over McGalliard Road, building entrance and exit ramps, according to INDOT spokesman Harry Maginity.

In an unrelated development, INDOT also announced it would resume plans to build an overpass that would carry Centennial Avenue over the bypass. Centennial's intersection with the bypass was the site of a fatal accident in 2007, two fatal accidents in 2002 and several other accidents in recent years that left motorists with serious injuries.

Currently, the McGalliard-Bypass intersection is serviced by a four-way traffic signal.
INDOT spokesman Harry Maginity said the proposed interchange would be safer and better suited to the original purpose of having a bypass.

To complete such a project, the state would have to acquire additional right-of-way, displacing some property holders in the area, which includes several businesses.

Construction at McGalliard Road would begin in 2010 and cost around $22 million, according to the INDOT Web site.

-As States sell off infrastructure, from water works to toll roads, they now have funds to initiate other transportation improvements from other than road taxes.

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The News Dispatch, January 19, 2008

MICHIGAN CITY - An obstacle in the city's plans to redevelop the North End could become moot soon after a lawsuit was filed to condemn two properties near Michigan Boulevard and Eighth Street.

Michigan City Redevelopment Commission Attorney Michael Bergerson said Friday he'd filed the suit last week in La Porte Superior Court 3.

The city wants condemned the Weber Sign property, 730 E. Eighth St., and property known as "the ice house," owned by Thomas and Florence Sobkowiak, 748 Michigan Blvd.

The city has tried for more than two years to purchase the properties - two of only three holdouts remaining in a string of properties needed for North End redevelopment.

Owners of Blocksom, a factory complex near Michigan Boulevard and Fifth Street, are in discussions with the city for an anticipated sale and relocation of the facility.

The Webers and Sobkowiaks, however, have refused to budge, as has the city. Bergerson's request for an eminent domain judgment, he said, is the last step in an arduous process.


The city is offering the Webers and Sobkowiaks $1 each for their properties. Bergerson said the offer is fair - in the eyes of the court - because the land under both properties is "highly contaminated."

"We can't pay for property that's also contaminated beyond its value," he said. "They can't sell it and they're living in a dream world if they think the taxpayers of Michigan City want to pay for a property and pay to clean it up."

Glenn Kuchel, the Hammond attorney representing Bill and Kathy Weber, the owners of Weber Sign, said Friday the offer of $1 isn't fair.

If condemnation is granted, an appraiser will settle on values for both properties and offer that amount to the owners. If the owners object to the price, the city will issue a deed and take the properties, but will still debate price with the owners.

-In reading the article and the claim of a “$1” value, one has to wonder whether the community fully understands the choices an owner has even with contaminated property. This is a court filing which was “rushed to judgment,” by the writer of the article, premised on comments of the community. Without question, the writer was not fairly notified of the owners' rights in this particular factual setting.

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News and Tribune, October 4, 2007

The town of Clarksville says it may condemn a portion of the Peddler's Mall property in order to pursue a revitalization project on Easter Boulevard.

The condemnation being discussed would not affect the building but would lay claim to about 25 feet of road frontage.

The plan is to add new lanes, landscaping and sidewalks.  

- One of the things apparent in Clarksville is that the owners do not necessarily have to respond to the government.  Owners have no obligation other than to provide the condemning agency with materials which may serve as the basis for valuation.  

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Pantagraph, August 20, 2007

A Canadian crude oil transporter requested eminent domain to construct a pipeline through McLean, Livingston and DeWitt counties.

The eminent domain power is sought only in the interest of efficiency and to meet public need for crude petroleum.

Enbridge wants to construct a 170 mile pipeline east of Bloomington from Pontiac to Patoka. Construction is slated to start in 2008.

-The pipeline going through Indiana is also going through Illinois. Property owners are challenging the taking at the Illinois Commerce Commission. It is unlikely that the local Commerce Commission would rule against a pipeline, especially in the present day context that the pipelines are federal activities and the challenge would therefore be made at the federal level. The pipeline company will aggressively take on the farmers, so the farmers and other owners challenging the estimate of just compensation is incorrect at a future date.

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Post-Tribune, August 5, 2007

Northwest Indiana is a prime piece of the national shipping puzzle.

A 3,000 acre parcel in LaPorte County is the potential site future site for a huge transportation hub.  The site is close to nearly all major interstates in Northwest Indiana.  

If the property owners of the tract do not respond soon to offers, eminent domain maybe used to kick them off their property.  Governments have the power to force private property owners to sell their land for the public use or for private use where there's a substantial public benefit.

-The location is a prime example of the highest and best use assembled by the government.  There is a reasonable argument that maintains that the government is the only source to assemble, but there is also an argument that part of the special value of the location should be for the benefit of the owners.

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NWI.com, July 13, 2007

The Gary/Chicago International Airport approved making a $1.6 million court deposit to secure a key stretch of land west of the main runway.  

The deposit is part of condemnation proceedings the airport initiated last year.

The authority board also approved paying the moving costs of a business located there and clean up costs. 

-Gary/Chicago International Airport will be a key foundation of redevelopment in the area. However, this is not to be a building block for one to the detriment of only the owners. Airport acquisitions are always specific and far more complicated than what first meets the eye. 

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Pantagraph, July 10, 2007

A Canadian company that wants to contruct a crude-oil pipeline through Central Illinois plans to file for eminet domain power near the end of the month.

Eminent domain remains a last option, however, Endbridge Inc. might begin negotiating with landowners around the same time it files for certificate of good standing...

The 170-mile pipeline would run east of Bloomington Normal from Pontiac to Patoka, affects about 95 landowners in Mclean county, 68 in Livingston County and 65 in DeWitt Count.

-A Canadian pipeline will work its way through Illinois despite the opposition of the local farmers. The issue then becomes one of how owners can be treated fairly. To simply “start negotiations” does not deal with the compensation or the valuation of pipeline takes.

At least there seems to be recognition that the tile fields will require repair.

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News Essential, June 2007

Fort Wayne is now free to take over the Aqua Indiana water utility's northern operation.   It will probably spend more than $1 million plus already invested in legal fees for a bad use of eminent domain - taking over a business that is working perfectly well in private hands.  

The Indiana Supreme Court has affirmed the original court's decision in favor of the city, relying on the "indeterminate permit" language giving authority to "a municipality like the city to purchase its property."  And the utility does not have the authority to designate a particular condemnation procedure.

-This article attacks the basic judicial premise that individuals and corporate entities have a right to make a profit without fear of acquisition by a condemnor. However, State Supreme Courts have consistently held that when a legislature grants a local agency the authority to purchase a franchise, the local government will generally be allowed to acquire. A similar example occurred in the Township of Grosse Ile v. Grosse Ile Bridge Company action of Township of Grosse Ile v. Grosse Ile Bridge Company, Supreme Court No. 131185, Court of Appeals No. 255759.

It is incomprehensible that such deference is given to legislative bodies at the local level where a statutes allow challenges for lack of necessity. Yet, courts have consistently construed the challenge to necessity being one of whether the end use is or is not a public purpose.

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