Highland Realty, Inc. v. Indianapolis Airport Authority

• Decision Date: 17 October 1979
• Docket Number: No. 2-1276A463,2-1276A463
• Citation: 182 Ind.App. 439,395 N.E.2d 1259
• Parties: HIGHLAND REALTY, INC., Appellant (Defendant Below), v. INDIANAPOLIS AIRPORT AUTHORITY, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1259

395 N.E.2d 1259

182 Ind.App. 439

HIGHLAND REALTY, INC., Appellant (Defendant Below), v. INDIANAPOLIS AIRPORT AUTHORITY, Appellee (Plaintiff Below).

No. 2-1276A463.

Court of Appeals of Indiana, Second District.

Oct. 17, 1979.

David H. Kleiman, Paul S. Elkin, Dann, Pecar, Newman, Talesnick & Kleiman, Indianapolis, for appellant

Chalmer Schlosser, Jr., William L. Schlosser, Schlosser, White & Schlosser, Frank J. Otte, Indianapolis, for appellee.

BUCHANAN, Chief Judge.

CASE SUMMARY

Appellant-defendant Highland Realty, Inc. (Highland) appeals from a judgment permitting the Indianapolis Airport Authority (Airport) to condemn its property, claiming the Airport had no authority to seize the land, that the seizure was neither necessary nor for a public purpose, and that no effort to purchase was made prior to suit.

We affirm in part and reverse in part.

FACTS

On March 6, 1976, Robert A. Duncan (Duncan), property manager for the Airport, sent Highland a letter in which he offered One Million Two Hundred Fifty Thousand Dollars ($1,250,000.00) to purchase a tract of land owned by Highland. ¹

The tract, located several hundred feet from [182 Ind.App. 441] the edge of one of the Airport's runways, was the home of a trailer park which Highland had operated since 1936. Approximately a thousand people resided in the trailer park.

Duncan's offer, based upon two independent appraisals, was countered by an offer to sell for approximately three times that amount. ² This counter offer was promptly refused by the Airport.

On May 12, 1976, the Airport filed suit to condemn Highland's property, claiming the land was needed to establish three distinct zones, a "clear zone", a "clear area protection zone", and a "noise buffer zone", as part of the Airport facility.

The trial court conducted a hearing which began on August 6, 1976, and included the following relevant uncontradicted testimony:

Duncan testified that as property manager of the Airport he was authorized by the Airport Board (Board) to purchase land which he deemed necessary for the operation of the Airport. He admitted that the Board was required to give final approval to any agreements he made, including the right to alter terms of an agreement, but in recent years the Board had always ratified his actions. He stressed that the offer submitted was within independent appraisals of the property's value and that the Airport was under a Federal Aviation Authority (FAA) directive to acquire a clear zone. Board acceptance was a mere formality.

Daniel Orcutt (Orcutt), Executive Director of the Airport, testified that part of Highland's property was required to establish a "clear zone" at the end of one runway. A "clear zone" is a cleared, flat area at the end of all runways which permits additional clearance in case an aircraft should overshoot or undershoot the runway. The clear zone is vital to airport safety, and is required by FAA regulations for all airports receiving federal funds. Clear zones provide a margin of safety because of undershoots and overshoots, which occur approximately three hundred times a year in the United States.

Orcutt also testified that the Airport had not yet attempted to purchase two small commercial buildings located in the proposed "clear zone", because of lack of funds. However, he indicated condemnation of the Highland property was the more urgent need because of the larger area involved and because an aircraft overshoot into the trailer park could result in a major catastrophe.

He defined a "clear area protection zone" which was another reason for the Airport's acquisition of Highland's property, with the following testimony:

Well, you are talking about the area that is either adjacent or off the end of However, a "clear area protection zone" is not defined or required by the FAA.

runways in which you as the administrator expect to have a noise problem and of course it's the function of the type of aircraft, the number of take offs and landings and type of land use as well as your community's response to what has been the current practice.

Regarding the need for a "noise buffer zone" to be created from another section of the Highland property, Orcutt presented a survey which indicated the affected land would suffer a serious noise problem by 1995. However, the Airport owns no other land classified in such a manner nor has the FAA developed any guidelines regarding the extent or necessity of such a zone. Orcutt admitted that one consideration in acquiring the land was to avoid possible inverse condemnation lawsuits in the future.

Thereafter, on November 12, 1976, at the conclusion of the hearing, the trial court allowed the Airport to condemn the Entire tract of land sought for all the three zones indicated with these findings and conclusions:

1. Plaintiff, Indianapolis Airport Authority, is a municipal corporation organized and established pursuant to Chapter 283 of the 1961 Acts of the Indiana General Assembly, I.C.1971-19-6-2-1 thru 19-6-2-37 and has the power of eminent domain pursuant to the powers granted it under said Act.

2. Defendant, Highland Realty, Inc., is the record title owner of a parcel of real estate located in Marion County Indiana, which real estate is located adjacent to the Indianapolis International Airport, formerly known as Weir Cook Municipal Airport, said real estate being more particularly described as follows:

(formal description omitted)

3. The Court has jurisdiction of the subject matter of this action and of the parties.

4. That it is necessary for plaintiff to acquire the fee simple title to said real estate for its general public use, specifically, clear area protection zone, noise buffer area, and general public safety, and the Court specifically finds that such use is a public use.

5. That plaintiff has the right to acquire said real estate under the powers granted to it by its enabling legislation.

6. Defendant, Highland Realty, Inc., an Indiana corporation, is the owner in fee simply of said real estate which constitutes the entire parcel of land appropriated by plaintiff.

7. Plaintiff, prior to proceeding with condemnation, made a good faith effort to purchase said real estate from defendant, Highland Realty, Inc., but was unable to agree with said defendant for the purchase thereof.

8. Plaintiff has a need to acquire the fee simple title to said real estate for the use and operation of Indianapolis International Airport.

9. Plaintiff is entitled to appropriate said real estate under its power of eminent domain and said real estate should be condemned to plaintiff's use.

10. That the written objections of defendant to such appropriation should be overruled.

11. The Court finds that the proceedings were conducted in compliance with the law and that plaintiff has the right to exercise the power of eminent domain for the use sought.

CONCLUSIONS OF LAW

1. That the law is with the plaintiff.

2. Plaintiff is an Indiana municipal corporation created by statute and charged with the responsibility of operating and maintaining Indianapolis International Airport.

3. Plaintiff has met the requirements of the law in exercising its power of eminent domain to appropriate the real estate owned by the defendant, Highland Realty, Inc.

4. Plaintiff is authorized by statute and has the right to exercise the power of eminent domain for plaintiff's intended use.

5. Plaintiff has a need to appropriate said real estate and that plaintiff's intended use of said real estate is a public use.

6. The written objections filed herein by defendant should be overruled.

THEREFORE, the court, being satisfied of the regularity of the proceeding herein, and having overruled the objections of the defendant herein, and the court being satisfied that the plaintiff has the right to exercise the power of eminent domain for the use sought in its complaint; . . .

Plaintiff, Indianapolis Airport Authority, shall appropriate and have the fee simple title to the following described real estate, situated in Marion County, Indiana, to-wit:

(formal description omitted)

together with the right of immediate possession thereto, all subject to the requirements of the law pertaining to actions in eminent domain, and the court appoints George Long, Joseph Schwarz, and Maralee O'Brien, three (3) disinterested freeholders of Marion County, Indiana as appraisers to assess the damages which said defendant may sustain by reason of the appropriation, and that after being duly sworn, according to law, they proceed to examine and assess said damages.

That said appraisers are hereby ordered to appear before this court at 12 o'clock p.m., on Nov. 17, 1976 to be sworn and receive their instructions, and the clerk of this court is hereby ordered to notify said appraisers to appear herein at said time and date.

While the parties treat this judgment as a final judgment we cannot. It merely determined that the Airport had authority to condemn Highland's property. No report of the appraisers or final monetary judgment appears in the court's entry (or in the record). It is merely an interlocutory order. See So. Ind. Rural Electric Coop. v. Civil City of Tell City (1979), Ind.App., 384 N.E.2d 1145.

ISSUES

Highland raises these issues:

1. Was the Airport's power of eminent domain sufficiently broad to allow condemnation of the Highland property?

2. Did the Airport make a sufficient effort to purchase the property before filing suit?

3. Was the Airport's proposed use of the property for a public purpose?

4. Did the Airport make a sufficient showing of necessity before attempting to condemn the property?

As indicated, we raise, sua sponte, the issue that this is an appeal from an interlocutory order. So. Ind. Rural Electric Coop., supra. In that case this court dismissed an appeal identical to this one under Ind.Code 32-11-7-5, because that statute required appeal to be taken from an eminent domain action prior to the...