Property Rights Foundation of America®

PRFA is Friend of Court in Appeal of Wymberley Eminent Domain

The Property Rights Foundation of America, Inc., has joined in filing an amicus curiae, or friend of the court, brief to the Indiana Supreme Court in support of the appeal by landowners, where the Indiana Court of Appeals ruled in favor of Wymberley Sanitary Works, a utility, in its use of its power of eminent domain. The case, Wymberley Sanitary Works v. Batliner, involves the use of eminent domain for the purpose of providing sanitary services for a single developer, rather than for a public purpose.

In the application of the eminent domain, Wymberley had obtained permission from the Indiana Utility Regulatory Commission, or IURC, to expand its service area with the intention to include developer Lynn's proposed subdivision developments and have its sewer facilities sized and otherwise designed so it would be possible to serve existing homes currently on individual septic systems. Wymberley convinced the IURC that expanding its Certificate of Territorial Authority would serve the public interest because a central sewage disposal service in the area also might provide relief for residents with failing septic systems, which pose a health risk to them and the general public.

However, the actual design was done by the subdivision developer to give the developer the cheapest route, with service to others not a design factor. In fact, the developer's designer, Paul Primavera, acknowledged that he was not aware on any existing homes that could potentially use the line. Earl L. Batliner, Jr., and the other property owners whose land would be condemned along the route, disputed the use of eminent domain.

In support of the Petition to Transfer the case to the Indiana Supreme Court, the friend of the court brief makes the argument that the issue is an impermissible delegation of the eminent domain power to a private party, which voids the taking. The Court of Appeals failed to address this issue.

In addition, the friend of the court brief takes the position that the Court of Appeals' opinion should be vacated because it effectively abdicates judicial review so long as a taking is for a public purpose. Instead, the brief states, judicial review should occur where there are allegations of pretext and bad faith, and the taking should be voided where the actual purpose is to bestow a private benefit. This argument is made because the Court of Appeals essentially concluded that the evidence of pretextual taking and improper delegation of the eminent domain power is irrelevant so long as the use to which taken property will ultimately be put is a "classic" public use.

Stephen J. Peters of Harrison & Moberly, LLP, of Indianapolis is counsel for the national amici, the Institute for Justice and the Property Rights Foundation of America.

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© 2009 Carol W. LaGrasse
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