Wednesday, April 15, 2009

Indiana Eminent Domain Case - Shades of Kelo

We have a new eminent domian case in Indiana. COA decides eminent domain case comes from The Indiana Lawyer.

Relying on the Supreme Court of the United States case of Kelo v. City of New London, 545 U.S. 469 (2005), the Indiana panel found that Wymberley's taking would not be transferring the property to a private entity but to a regulated public utility providing public service - not as far as the SCOTUS ruling had allowed.

"The court's decision is clearly in the mainstream, not on the outer edges of eminent domain authority, and proves the common practice by which developers pay for utility service connections," said Baker & Daniels attorney Jon Laramore, who represents Wymberley. "They've clearly said that sewer service is a traditional public purpose, even if there's some additional private benefit to the developer."

But Bose McKinney & Evans attorney Bryan Babb, who represents the landowners in this case, said this ruling is one of first impression on various fronts and means that property owners have no protection in condemnation actions.
While Kelo draws attention to the case, the Court of Appeals only citation to Kelo is as follows:
Caselaw supports this position. In Kelo v. City of New London, the United States
Supreme Court found that a municipal taking was for a public purpose even though the property that was taken was to be transferred to the hands of another private owner. 545 U.S. 469 (2005). It is apparent that the instant case does not even go that far, inasmuch as Wymberleys taking would not transfer the property to a private entity but to a regulated public utility that provides a public service.
Instead, the Court of Appeals relied relied on Indiana precedent. My reading on eminent domain was several years ago, but my impression is that there has been little protection for the property owner for a very long time.