Eminent domain lawsuits watched: (Louisville KY) Courier-Journal, 9/11/05

Sewer fight in Floyd could change limits

By Ben Zion Hershberg

A legal battle under way in Floyd County [IN] could set new limits on the way privately owned companies use eminent domain to take land from property owners.

The dispute is over lawsuits filed last month by Thieneman Environmental LLC, a newly created sewer system.

The company wants to take a 60-foot-wide swath of land from three neighbors to install a sewer line that would run from the company's planned plant in the Heritage Springs subdivision near Greenville to Jersey Park Creek.

The subdivision's developers, Steve and Don Thieneman, also own the sewer utility.

"I'm going to fight it," said Anna Mae Gahlinger, one of the property owners Thieneman Environmental sued and a vocal opponent of Heritage Springs.

Like many of her neighbors, Gahlinger has complained that the 206-house subdivision on 98 acres would be too large and too tightly packed for the rural neighborhood.

She doesn't want to give the sewer company any of her land to help develop the subdivision, Gahlinger said.

"You just don't take private property over the serious objections of its owner" because a private developer wants it, Gahlinger said.

Greg Fifer, the developers' lawyer, said he believes the legal issues are clearly in his clients' favor.

Indiana law gives utilities the right to take land needed for a public purpose, Fifer said, and it doesn't matter if the utility is privately owned.

The fact his clients own the sewer company and the subdivision it will serve doesn't matter, Fifer said. The Indiana Utility Regulatory Commission certified Thieneman Environmental as a utility in June, and that supports the company's right to take easements for its sewer lines to provide service to homeowners, he said.

The company would pay an appraised value for the easements.

But Mike Mullett, an environmental and public-interest lawyer from Indianapolis, said there might be ways for Gahlinger and other property owners to fight.

"You cannot exercise eminent domain for a private purpose," Mullett said. "It must be exercised for a public purpose."

The eminent domain suits were filed in Floyd Circuit Court. Judge J. Terrence Cody has recused himself and Clark Superior Court Judge Steven Fleece has been appointed to handle them.

Eric Kelly, a lawyer and a professor of urban planning at Ball State University, said that defining what is a public purpose can be difficult.

As an example, he cited a public airport's expansion. Most people would agree that an airport serves a public purpose and stimulates economic development, Kelly said, but private businesses operate in the airport and make more money because of the expansion.

"We probably make it too easy to set up private utility companies in Indiana," Kelly said.

Thieneman Environmental's eminent domain cases sound as though they might be "pretty far" into the gray area of state law, Kelly said, but he thinks the company likely will prevail.

Jeffersonville lawyer Jack Vissing, who represents Gahlinger, filed objections to Thieneman Environmental using eminent domain. They focus on the company's procedures and on his clients' basic property rights.

He argues that the certification of the company as a utility is contingent upon state environmental regulators approving its sewer-construction plans. That hasn't happened, Vissing said, so the company isn't certified.

Louisville Courier-Journal: www.courier-journal.com