Floyd County passes eminent domain ordinance: New Albany IN News and Tribune, 9/6/06

Utility companies, attorneys say measure may prompt lawsuits

By Chris Morris

Steve Lohmeyer said the wording for eminent domain changed in the case of Kelo vs. New London. Because of that, individual states and counties have the right to adopt their own laws and ordinances concerning eminent domain.

The Floyd County Commissioners agreed.

After 90 minutes of debate, the commissioners voted 2-1 to accept the ordinance Tuesday afternoon. Chuck Freiberger and Steve Bush voted in favor while Dr. John Reisert voted against.

In Kelo vs. New London, Conn., the U.S. Supreme Court ruled that the exercise of eminent domain, to take private property for a private use, does not necessarily violate U.S. Constitution.

“The terms public use and public purpose used to be synonymous with eminent domain. But Kelo changed all of that,” said Lohmeyer, the county attorney.

Lohmeyer, under the direction of the commissioners, adopted the ordinance which passed Tuesday afternoon.

The main points of the ordinance states that:
  • Effective immediately, in Floyd County, no private property shall be taken in exercise of eminent domain without first seeking the approval of the Board of Commissioners.
  • No approval shall be given unless and until the board determines that the proposed taking is truly for public use.
  • An action may be brought for mandatory or injunctive relief as against any person violating the terms and provisions of this ordinance.

Prior to the vote, attorneys Greg Fifer and John Kraft, who represent several area developers, voiced concerns with the ordinance. Both said it was too broad and the commissioners were overstepping their authority.

“This makes you the gate keepers,” Kraft told the commissioners. “This will stymie or stop development in which utilities need to be run in an area. If you pass this ordinance, you will be padding to the retirement fund of attorneys involved in litigation against this.”

Kraft said ordinances are already in place if citizens object to eminent domain being used against them. If the property owner and utility company can not agree on price, the citizen can request a show cause hearing before a judge.

“There is already a remedy for them to protect themselves,” Fifer said.

“It may cost you more to fight it than your land’s worth,” Floyds Knobs resident George Mouser said.

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