Floyd eminent-domain vote delayed: Louisville KY Courier-Journal, 8/16/06

Utilities' use of power at issue

By Matt Batcheldor

The Floyd County Board of Commissioners discussed but did not vote on an ordinance last night that would give it final say over whether a public utility can condemn land in eminent-domain proceedings.

Commissioner Steve Bush agreed with Chuck Freiberger that the ordinance was a good idea, but declined to second Freiberger's motion to vote on it. He said he wanted to wait until Commissioner John Reisert, who was absent, could be present.

Freiberger said he expected the issue to come up at the next meeting on Sept. 5.

At issue is whether utilities can use their power of eminent domain to force a sewer line through private properties next to a proposed development.

The issue arose with developer Bob Lynn's planned 223-lot Lafayette Ridge subdivision off Stiller and Fertig Creek roads. The county's Plan Commission approved the project last month, but only if Lynn could get easements on four neighbors' land for sewer lines — and they have refused.

Condemnation proceedings began about two weeks ago, said Dan Danzl, one of the four neighbors.

County Attorney Steve Lohmeyer said the county commissioners couldn't stop those proceedings even if they adopt the measure. But Bush and Freiberger said the county could stop such action in the future.

"It's my intention that our private property we have as homeowners should be protected," Freiberger said.

Neighbors at yesterday's meeting applauded the ordinance, but Lynn called it a backdoor attempt to stop development in the county.

"There is a large difference between taking of property … and the acquisition by the utility company of a right of easement to provide services for a future development," he said.

Lynn said he doubted such a law would stand up in court.

"So now you're threatening a lawsuit?" Freiberger asked Lynn.

Lynn said he wasn't.

"I've built 1,000 houses; 25 subdivisions," he said. "I guarantee those houses have done a public good."

Danzl said public good has nothing to do with Lynn's proposal, and that Lynn was the only one who stood to benefit.

"When it's clearly not in the interest of the county, which it isn't, you should be able to say 'thumbs down,' " Danzl said.

George Mouser, who lives on Phillip Schmidt Road and isn't directly affected by the development but has fought "rural sewers" for years, said he's afraid sewage will leak into Indian Creek and flow downstream into his property.

He also suggested the county could block Lynn's subdivision by refusing to let his proposed sewer lines cross county roads, scuttling the project. In an interview after the meeting, Lohmeyer said the county has the authority to do so. But the commissioners declined to say whether they might do that to stop the project.

The commissioners said they didn't draft the ordinance in response to the Lafayette Ridge situation because the U.S. Supreme Court significantly loosened restrictions in a 5-4 ruling last year.

The high court ruled that a Connecticut city could take private homes and transfer them to a private developer for a development project. Previously, governments nationwide have taken private land only to build publicly owned facilities like a road or a park.

The Supreme Court case prompted Indiana's General Assembly to adopt a law earlier this year making it much more difficult for a local government to take private land. The land must be considered blighted, unsafe or unsanitary, and a percentage of landowners would have to agree with a project before eminent domain could be used to proceed.

But that law doesn't address eminent-domain seizures by public utilities. And if state government isn't doing anything, local government should, Bush and Freiberger said.

Louisville KY Courier-Journal: http://www.courier-journal.com