Eminent Domain

[Jim Garrettson]

IPS authorized to condemn houses near School 58
Board advances School 58 project

By Andy Gammill
Posted: July 28, 2010
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The Indianapolis Public School Board voted 5-2 Tuesday to authorize
the school district to condemn seven houses near School 58 despite
loud objections from several owners and their neighbors.
Superintendent Eugene White said the district has few options and
needs to buy those homes and raze them to make room for improvements
to the school and for a parking lot. The district's only other option,
he said, might be to close the school and move it to another location.


The district said the school needs renovations desperately and that
the current bus-loading situation is too dangerous to continue.
• MORE COVERAGE: Get a roundup of Indianapolis-area education news.
White told board members that their vote would not be the final
decision on using eminent domain despite wording in the board
resolution that explicitly authorizes its use. The district would
first try to buy homes and even if that fails would not then
automatically seek to condemn them, he said.
White said neighbors need to trust him that the district will listen
to the community and that he won't proceed without bringing the matter
back to the board.
But neighbors said they don't trust the board to do that.
"It sounds like they already made up their minds to use eminent
domain, and we were never brought into the conversation," said Bryan
Luellen, who lives a block from the homes the district wants to buy.
Dozens of neighbors and homeowners attended Tuesday's board meeting
carrying signs with slogans such as "Do not take committed property
owners' homes" and "IPS your teaching kids to just take what they
want."
Aaron Bostian, who lives just up the street from the houses in
question, said that taking out those houses would devastate the
neighborhood, which considers itself a tight-knit bastion of quiet
among nearby deteriorating neighborhoods.
"It would destroy it," he said. "We've got a fairly quiet street."
Board members Annie Roof and Samantha Adair-White, who were sworn into
office just this month, cast the two votes against the district's
request.

IPS project would uproot 7 Eastside homeowners
District says it will use eminent domain if residents resist

By Andy Gammill
Posted: July 21, 2010
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Sheila Shafer planned to spend her golden years in the same spot she's
lived the past 20 years: an energetic arts and crafts style house
along New York Street on Indianapolis' Eastside.
It's the house where she and her husband meticulously created a
landscape garden, built a second-story balcony porch and hand-crafted
a window seat in the dining room.


Next up were granite countertops, hardwood floors and new cabinets for
the kitchen. But a few weeks ago, she had to call and cancel those
orders after learning she might lose her house.
It's not that she fell behind on her payments or anything like that.
Rather, Indianapolis Public Schools wants her land for a parking lot.
IPS sent notice to her and six other homeowners next to School 58 that
renovations, including a new cafeteria and library, will eat into the
school's parking lot and require the district to make room for
parking.
The seven houses are in just the right spot.
Superintendent Eugene White said the new bus-loading area and other
improvements are desperately needed to improve safety at the school.
The letters sent to Shafer and her neighbors said IPS will offer them
the fair market value of their houses. But they warned that if
homeowners try to fight the plan, the district will move to eminent
domain proceedings and condemn the houses.
"I don't want to sell my house," Shafer said Tuesday, crying in her
dining room. "It's not much, but I've been here 20 years. We were
going to live here the rest of our lives."
The School Board is set to vote next week on a recommendation to
authorize offers to the seven homeowners and, failing that, to begin
condemnation proceedings that would seize properties.
Shafer spoke at a board meeting Tuesday. A few board members expressed
hesitations about the process and asked that a community meeting be
scheduled to hear residents' opinions.
White said that even if the board authorizes eminent domain
proceedings now, it will have several opportunities later to halt
those proceedings.
The safety concerns about narrow streets and no safe bus-loading area,
though, are too great to leave unaddressed, he said.
That whole area is congested," White said. "We are so afraid those
kids are going to get hit by cars."
School Board member Marianna Zaphiriou, who represents that area, said
she often passes the school and fears for the children she sees.


"I shudder when I drive by and school's letting out," she said. "If
we're going to leave the school in that neighborhood, there aren't
many more options to do that safely."
District officials said they use eminent domain proceedings as a very
last option, but there might be times when it is best for the
community to forcefully acquire a few properties.
That reasoning doesn't sit too well with the affected homeowners, who
say the district could use other land for off-site parking, use
another school building nearby or even leave the school as it is.
Arlene Cole, 74, said she thinks any of those options would be better
than forcing her to leave the home she has lived in for 38 years and
where she raised children who attended School 58.
"I'm just heartsick over this," she said. "I don't think it's right
they can take somebody's home."
If she loses her home, Cole said, she might have to leave the city she
has lived in for decades and live near one of her children out-of-
state. Under any scenario, she foresees having to get rid of years of
accumulated memories.
The proposed School Board resolution does not detail a timeline for
the project. It does require the district to provide relocation
assistance.
For a few neighbors already looking to sell, the offer sounds like a
great deal. But Cole and Shafer would rather just keep their houses.
"I don't want to sell this house," Shafer said. "And I'm afraid that's
what's going to happen."

[Jim Garrettson]

Eminent Domain: Taking Property for Public Use
The Government's Power of Eminent Domain

Eminent domain is the power of government to take private land for
public use. This power is limited by the federal Constitution and by
state constitutions -- when the government does take private property
for public use, it must fairly compensate the owner for the
deprivation. Sometimes the operation of eminent domain is a
straightforward matter, with the government providing the landowner a
fair price, and the landowner yielding the property to public use. At
other times, however, government and the landowner may disagree over
whether a taking has occurred, and how much compensation is due.

History of "Eminent Domain"

The law of eminent domain derives from the so-called "Takings Clause"
of the Fifth Amendment, which states, "[N]or shall private property be
taken for public use, without just compensation." The men who created
the Constitution were, for the most part, landholders with a certain
mistrust of government power. To protect private landholders from
abuses by government, the Founders limited the government's power to
take property. At that time, the government action they likely
envisioned was seizure of the land and its occupation by government.
As the country's population continued to grow, however, local
governments began to place increasing controls on the use of land.
Where landowners believed that these restrictions impeded their use of
the property, or damaged its value, they began to argue that these
restrictions also constituted a taking of their land requiring
adequate compensation. At first, the courts were reluctant to hear
these claims. Over time, however, courts began to recognize them,
adding a new dimension to the law of eminent domain.

The Fifth Amendment "Takings" Clause

The "Takings" Clause of the Fifth Amendment has several important
components. First, it applies only to private property. Should the
government decide to change the use of some piece of public land, i.e.
build a bus terminal on what had been a public park, that action would
not compel the government to pay citizens who used the park. It's
possible, however, that the new use might infringe the rights of
neighboring landowners so much that they could sue anyway, equating
the infringement of their property rights with an outright taking of
their land. This process, known as an inverse condemnation proceeding,
is discussed below.

The second requirement under the Fifth Amendment is that the land be
taken for public use. This limitation prevents government officials
from taking private land for their own purposes. For example, a member
of Congress could not take the home of a private citizen for his or
her own use under eminent domain. Sometimes, however, courts have
upheld takings that ultimately resulted in a private party possessing
the land. This has occurred, for example, to allow expansion of an
auto plant felt to be beneficial to the local economy, and in
instances of urban renewal, where a new neighborhood goes up in place
of an old and dilapidated one.

"Just" Compensation

Finally, the Fifth Amendment requires just compensation. Fair
compensation is typically determined using the market value of the
land, that is, the price for which the landowner could reasonably
expect to sell the land to some other buyer. What the land is worth
depends on many things, including the size of the property and the
buildings, crops, or timber upon the land. For permanent takings,
courts use one of several methods to determine market value. Where the
government's use of or encroachment upon the property is of limited
duration or scope, the calculation of value may be trickier.

The Eminent Domain Process

In the classic case of eminent domain, the government determines that
it needs certain privately owned land to create some public benefit,
such as construction of a new highway. The government may offer the
landowner a price to which he or she agrees, or it might initiate what
is called a condemnation proceeding, when they cannot agree on value.
The property owner has a right to notice of the government's decision
and an opportunity to respond, and to just compensation for the land
taken. The government pays the landowner, the landowner leaves the
property, and the government builds the road.

Inverse Condemnation Proceedings

Sometimes, however, the government will deny that it has taken
anything from the landowner. Thus, the landowner will commence an
action, called an inverse condemnation proceeding, seeking
compensation from the government. This situation can arise in a
variety of ways. For example, the government might engage in conduct
that destroys the landowner's ability to use and enjoy the property,
such as by building an airstrip next to the property and flying planes
over it, or cutting off or polluting the flow of water to the land.
The government might also obstruct the landowner's access to the
property with water or debris, as where dynamiting operations block
the road to the landowner's property.

Public Use Requirement
An eminent domain action requires that the government's taking of
property be for a "public use". A public use is generally one which
confers some benefit or advantage to the public. The term does not
necessarily imply -- and is not confined to -- actual "use" by the
public. Moreover, the purported benefit to be derived from the taking
of property need not be available to the entire public; it may benefit
a smaller sector of members of the public in a particular locality,
i.e. a subdivision of the general public. In other words, it is not
necessary that the intended users be all members of the public;
rather, it is the purpose for the taking that must be for the public,
and not for the benefit of any particular individuals.

The use (purpose) must be a needed one, which cannot be surrendered
without obvious general loss or inconvenience. However, the parameters
of such needed public use move along a spectrum, and defy absolute
definition because of factors such as changing needs of society,
increases in population, and developing modes of transportation and
communications.

In Kelo v. City of New Landen (2005), the U.S. Supreme Court was
called upon to determine whether that changing parameter was broad
enough to include for-profit development of real estate which would
ostensibly result in needed economic growth for the community. In a
decision that surprised many, the Court agreed.

Justification or Necessity Requirement
It is the legislature that has the power to determine the necessity of
taking property for public use, as well as the amount of property to
be taken. Most takings must comport with legislative language that
mandates under what circumstances such an action is justified or
necessary.

Government Condemnation Power

If a local government deems certain property to be a hazard to the
public, e.g. a health or safety risk, it may condemn the property as
unfit for human occupancy following formal inspection and assessment.
Usually this is accomplished by citation of violations involving local
ordinances, building codes, or federal public safety regulations.
During the time between condemnation and bringing the property back
into conformity with relevant laws, a landowner is generally not
entitled to compensation, even though a deprivation of property rights
has occurred.

"Excess Condemnation" Actions

A formal court action objecting to the taking of property that is not
strictly needed for public use -- or for taking more property than
needed for public use -- is generally referred to as an action for
"excess condemnation."

[Jim Garrettson]

MKNA asked IPS Board members who voted for, and against, the Motion if
they cared to elaborate on their vote. This is what we've received:



Recently the IPS school board voted 5-2 to start the process of buying
homes on the city's east side. I, and another member, voted against.
Here's why.

I felt that the community deserved a chance to speak publicly on this
issue, before the vote. The homeowners were notified and given an
opportunity to address the board at the previous meeting. And there
will be meetings in the future for the community to come speak and ask
questions. I just felt that it would of been more respectful to the
neighbors to have their concerns heard first. So many communities
and their members are vital to the success of IPS schools. We need to
treat them like our partners.
I believe in the power of a strong community. I am lucky to be a part
of one. I see the community that surrounds school #58 as a strong
group of individuals who want a great neighborhood and want to do what
is best. I don't want to take someone's home. I don't want to force
good home owners out of a neighborhood that they love. But, to tell
the truth, I can not say where I stand on following through with
eminent domain. Because as much as I don't want to hurt the home
owners, I also know that these students need these updates. They
deserve them.
I voted against this process because I did not have enough information
to make such a decision. There are many sides to be heard, many
arguments to be made, and I want to listen. I am listening. I have
already received many emails, letter, and phone calls. If you want to
contact me, please do so at ro...@ips.k12.in.us
THank you.
Annie Roof
IPS At-Large