Nick Domaschko and Edwina Domaschko, and their Respective Trusts v. State of Indiana , 2013 Ind. App. LEXIS 12 ( 2013 )

FOR PUBLICATION
FILED
Jan 16 2013, 8:39 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMAN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
DAVID K. STEINER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NICK DOMASCHKO and EDWINA )
DOMASCHKO, and their RESPECTIVE TRUSTS, )
et al, )
)
Appellants-Defendants, )
)
vs. ) No. 58A01-1206-PL-261
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE OHIO CIRCUIT COURT
The Honorable James Humphrey, Judge
Cause No. 58C01-1105-PL-2
January 16, 2013
OPINION – FOR PUBLICATION
BARNES, Judge
Case Summary
Nick Domaschko, Edwina Domaschko, and their respective trusts, et al.,
(collectively “the Domaschkos”) appeal the trial court’s order of immediate appropriation
and appointment of appraisers. We affirm.
Issue
The Domaschkos raise one issue, which we restate as whether the trial court
properly determined that the State, through the Indiana Department of Transportation
(“INDOT”), was entitled by law to acquire the Domaschkos’ property.
Facts
The Domaschkos own approximately 900 acres of land in Ohio County between
State Road 56 and the Ohio River. On May 16, 2011, INDOT filed a complaint for the
appropriation of real estate in connection with a project to improve State Road 56. In
addition to temporary rights of way, INDOT sought fee simple ownership of certain
portions of the Domaschkos’ property. The Domaschkos objected, asserting that some of
the real estate INDOT was seeking to appropriate was not related to highway purposes.
INDOT filed a motion to overrule the Domaschkos’ objections. Eventually, the trial
court conducted an evidentiary hearing on the Domaschkos’ objections. On May 30,
2012, the trial court issued an order of immediate appropriation and appointment of
appraisers. The Domaschkos now appeal.
Analysis
The Domaschkos assert that two portions of the land INDOT sought to acquire are
not related to the improvement of State Road 56 and, therefore, INDOT was not
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statutorily authorized to appropriate that property. The first portion of land is a fifty-foot
buffer zone associated with the relocation of Thuermer Hollow Creek (“the Creek”). The
second is associated with a shared driveway that currently straddles two properties, one
owned by the Domasckos and the other owned by the Pate Aberdeen Water Company
(“Water Company”).
To the extent the trial court’s judgment is based on the interpretation of a statute,
the judgment is a question of law. See Cochran v. State, 859 N.E.2d 727, 729 (Ind. Ct.
App. 2007). “The first step in interpreting a statute is to determine whether the
legislature has spoken clearly and unambiguously on the point in question.” Id. “When a
statute is clear and unambiguous, we need not apply any rules of statutory construction
other than to require that words and phrases be taken in their plain, ordinary, and usual
sense.” Id.As the Domaschkos point out, pursuant to Indiana Code Section 8-23-2-4.1(4),
INDOT is responsible for the construction, reconstruction, improvement, maintenance,
and repair of state highways. Further, pursuant to Indiana Code Section 8-23-2-6(a)(1),
INDOT may “[a]cquire by purchase, gift, or condemnation, sell, abandon, own in fee or a
lesser interest, hold, or lease property in the name of the state, or otherwise dispose of or
encumber property to carry out its responsibilities.” INDOT is also authorized to
“[p]erform all actions necessary to carry out the department’s responsibilities.” Ind.
Code § 8-23-2-6(a)(13).
Accordingly, the Domaschkos concede, “[s]imple statutory construction leads to a
clear conclusion—INDOT can take property, but it has to be for the purpose of
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maintaining and improving state highways.” Appellant’s Br. p. 10. The Domaschkos
argue, however, that INDOT does not have the authority to acquire land to “plant trees or
to maintain driveways unrelated to road construction.” Id.In State v. Collom, 720 N.E.2d 737, 741 (Ind. Ct. App, 1999), we observed:
It has long been established that the necessity of taking
property for public use is purely a legislative question and not
a proper subject for judicial review; where the intended use is
public, this question may be determined by such agency and
in such manner as the legislature may designate. Wampler v.
Trustees of Indiana University, 241 Ind. 449, 453, 172 N.E.2d
67, 69 (1961). Thus, “a court may not inquire into the
administrative determination of the propriety, reasonableness,
or necessity for the taking of property by eminent domain by
a proper authority, except for fraud, or where the proceeding
is a subterfuge for taking property for private use.” Cemetery
Co. v. Warren School Twp. of Marion County, 236 Ind. 171,
189, 139 N.E.2d 538, 546-47 (1957). As our supreme court
has explained:
The courts have the right to determine the legal
authority and right under which the power of
eminent domain is exercised. This does not
mean, however, that the courts may assume the
administrative act of determining the necessity
or reasonableness of the decision to appropriate
and take the land. To us, this appears to be a
matter for the determination of the legislature or
the corporate body to whom the legislature has
delegated such a decision. We do not think the
court has the power to inquire into the wisdom
or propriety of such judgment unless a question
of fraud or bad faith is raised as where an
attempt is made to show that the property taken
will not be used for a public purpose, or the
proceeding is a subterfuge to convey the
property to a private use.
Id., 236 Ind. at 188, 139 N.E.2d at 545 (emphasis in original).
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*****
Necessity under Indiana’s eminent domain statutes is not
limited to the “absolute or indispensable needs of [the State],
but is considered to be that which is reasonably proper and
useful for the purpose sought.” See Ellis v. Public Service
Co. of Indiana, Inc., 168 Ind. App. 269, 272, 342 N.E.2d 921,
923 (1976) (discussing utility eminent domain proceedings).
Moreover, “[o]ur policy should not be such as to place an
undue burden upon the State in acquiring land for such public
improvements as highway construction when such
improvements are considered to be in the public interest.”
State v. Heslar, 257 Ind. 307, 315, 274 N.E.2d 261, 266
(1971). All issues concerning the expediency and necessity
of the taking of private property “are exclusively for the
legislature. Unless the action of the legislature is arbitrary,
and the use for which the property is taken is clearly private,
the courts will not interfere.” Guerrettaz v. Public Service
Co. of Indiana, 227 Ind. 556, 561, 87 N.E.2d 721, 724 (1949).
In Collom, we went on to explain the burden is on the party objecting to the appropriation
to establish that the taking is not necessary for the purpose sought, and then only on the
grounds of fraud, capriciousness, or illegality in the State’s determination of necessity.
Collom, 720 N.E.2d at 742.
To the extent the issue is properly framed as a challenge to INDOT’s statutory
authority to acquire land, as opposed to the necessity of the specific acquisition, we are
unpersuaded that the property at issue is unrelated to the improvement of State Road 56.
Regarding the buffer zone, at the hearing, INDOT presented evidence that, as part
of the project, it wanted to realign the intersection of Thuermer Hollow Road and State
Road 56 because the intersection was at an undesirable angle and the realignment would
provide a safer intersection and adequate sight distance at the intersection. To realign the
road, INDOT would need to relocate the Creek, which runs parallel to the road. To
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relocate the Creek, INDOT was required to obtain certain permits from the Indiana
Department of Environmental Management and the U.S. Army Corps of Engineers. As
part of the permitting process, INDOT was required to mitigate the impact of the Creek
relocation by installing a fifty-foot buffer zone, which included the planting of trees,
along the relocated portions of the Creek.
The Domaschkos claim that the acquisition of the buffer zone is unrelated to the
improvement of State Road 56 because the Creek is not a navigable waterway subject to
the Clean Water Act and, even if the Creek is subject to the Clean Water Act, adequate
mitigation can occur elsewhere. These arguments miss the mark.
Although the Domaschkos offered the testimony of a civil engineer who stated
that the buffer zone was not necessary and that the mitigation could be done elsewhere
and Nick Domaschko testified that the Creek is often dry, INDOT offered extensive
testimony regarding the requirement of the buffer zone. For example, the environmental
manager for the project testified that it was not possible to avoid the relocation of the
Creek and that the buffer zone was required as part of the permitting process. This is
consistent with the testimony of a project engineer, who testified that the project could
not have been built without the Creek relocation and that INDOT could not have built the
project without the buffer zone. Another engineer testified that the project could not have
been built without the permits. This engineer also testified that the project could not have
been built without this land acquisition.
This evidence established that the acquisition of the buffer zone is related to
INDOT’s responsibility to improve State Road 56. See I.C. §§ 8-23-2-6(a)(1), 8-23-2-
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6(a)(13), 8-23-2-4.1(4); see also Cochran, 859 N.E.2d at 731 (holding that INDOT was
statutorily authorized to acquire property in order to carry out its responsibility of
reconstructing state highways and perform all actions necessary to carry out such
reconstruction, including the construction of drainage facilities to accommodate
additional run-off from a reconstruction project). Thus, the Domaschkos have not
established that INDOT was not statutorily authorized to acquire the buffer zone.
Regarding the permanent acquisition of land to be used as a shared driveway for
the Domaschkos and the Water Company, Domaschkos assert that a permanent right of
way is unnecessary because the Water Company has an entrance at another location.
However, INDOT presented testimony explaining that the Domaschkos’ expert’s design
was not viable and that a permanent right-of-way was necessary because “[t]he driveway
is shared by two property owners, so according to Indiana design manual, we have to take
permanent right-of-way. We cannot take temporary right-of way from one owner to
build a drive . . . for another.” Tr. p. 110. Thus, it is clear that the acquisition of this
property is related to the improvement of State Road 56 and, therefore, INDOT is
statutorily authorized to acquire the property for the driveway. See I.C. §§ 8-23-2-
6(a)(1), 8-23-2-6(a)(13), 8-23-2-4.1(4). The Domaschkos have not established that the
trial court erroneously ordered the acquisition of the property associated with the buffer
zone or the driveway.
Conclusion
Because the buffer zone and driveway are related to the improvement of State
Road 56, INDOT was statutorily authorized to acquire that property. We affirm.
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Affirmed.
BAKER, J., and RILEY, J., concur.
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