Taylor-Chalmers, Inc. v. Board of Com'rs of LaPorte County

• Citation: 474 N.E.2d 531
• Decision Date: 21 February 1985
• Docket Number: No. 3-384A82,TAYLOR-CHALMER,INC,3-384A82
• Parties: , Lyman C. Taylor, and Frances Newberry, Appellant (Plaintiffs Below), v. BOARD OF COMMISSIONERS OF LaPORTE COUNTY, Indiana, Appellee (Defendants Below).
• Court: Court of Appeals of Indiana

Page 531

474 N.E.2d 531

TAYLOR-CHALMERS, INC., Lyman C. Taylor, and Frances Newberry, Appellant (Plaintiffs Below), v. BOARD OF COMMISSIONERS OF LaPORTE COUNTY, Indiana, Appellee (Defendants Below).

No. 3-384A82.

Court of Appeals of Indiana Third District.

Feb. 21, 1985.

Patrick E. Donoghue, Sweeney, Dabagia, Donoghue & Thorne, Michigan City, for appellant.

Donald E. Baugher, Jr., Raelson, Osborn, Roule, Baugher & Hedge, LaPorte, for appellee.

STATON, Presiding Judge.

Taylor-Chalmers, Inc. (Taylor-Chalmers), appeals from a summary judgment granted in favor of the Board of Commissioners of LaPorte County, Indiana (Board), in an inverse condemnation proceeding.

Affirmed.

Our standard of review of summary judgment is well settled. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56(C). A genuine issue exists if the trial court would be required to resolve disputed facts, but in order to preclude summary judgment, the conflicting facts must be decisive to the action or to a relevant secondary issue. City of Hammond v. Cataldi (1983), Ind.App., 449 N.E.2d 1184, 1186.

The facts in this case are not in dispute. The Board rezoned property abutting that of Taylor-Chalmers' so that a sanitary landfill could be built on the rezoned property. Taylor-Chalmers filed an action in inverse condemnation alleging that the Board's action was a compensable "taking" in that Taylor-Chalmers had lost the "highest and best use" of its land. After taking depositions and receiving answers to interrogatories, the Board moved for summary judgment. The Board argued that the loss of "highest and best use" was not a compensable interest. The trial court agreed and granted the Board's motion.

"The test for a taking of property has been stated as follows:

'It therefore follows that either some physical part of the real estate must be taken from the owner or lessor, or some substantial right attached to the use of the real estate taken before any basis for compensable damage may be obtained by an owner of real estate in an eminent domain proceeding. It must be special and peculiar to the real estate and not some general inconvenience suffered alike by the public.' State v. Jordan (1966), 247 Ind. 361, 368, 215 N.E.2d 32, 35. See also Schuh v. State (1968), 251 Ind. 403, 241 N.E.2d 362; State v. Stefaniak (1968), 250 Ind. 631, 238 N.E.2d 451."

City of Gary, etc. v. Ruberto (1976), 171 Ind.App. 1, 5, 6, 354 N.E.2d 786, 789. Taylor-Chalmers admits there has been no physical invasion of its property. Taylor-Chalmers also admits no nuisance has been created. Taylor-Chalmers' sole allegation is that a "taking" has occurred because the value of its land has been reduced from that of "commercial or accomodation business" to "light industrial or agricultural," i.e., that it has lost the "highest and best use" of its land.

In situations involving government controls on the use of property our courts have consistently held a "taking" will be found only where all reasonable uses of the property are prevented. City of Anderson v. Associated Furniture, etc. (1981), Ind., 423 N.E.2d 293, 296; Foreman v. State ex rel. Dep't of Natural Resources (1979), 180 Ind.App. 94, 102, 387 N.E.2d 455, 461; City of Evansville v. Reis Tire Sales, Inc. (1975), 165 Ind.App. 638, 641, 333 N.E.2d 800, 802. In such cases this Court has held that a distinction must be drawn between an assertion that a parcel of property cannot be used for its best and most profitable use and a situation where an owner has been deprived of his property rights--only the latter is confiscatory. Metropolitan Bd. of Zoning App. v. Sheehan Const. Co. (1974), 160 Ind.App. 520, 526, 313 N.E.2d 78, 82.

In "taking" cases, the reasonable use of the property has been substantially altered or destroyed. The government's action has rezoned the property so that its present use must be discontinued. Schuh v. State (1968), 251 Ind. 403, 241 N.E.2d 362 (government's appropriation of right of way for widening of a highway placed property in violation of local zoning ordinance so that a building on the property had to be razed.) The property has been made subject to greater zoning restrictions on its use. State v. Stefaniak (1968), 250 Ind. 631, 238 N.E.2d 451 (change of grade and highway put homeowner's house closer to highway than allowed by local zoning ordinance so that new restrictions were placed on the development of the property). The property has been made economically and practically unfit for any of its zoned uses and must be rezoned to be used. City of Anderson v. Associated Furniture, etc., supra; City of Evansville v. Reis Tire Sales, Inc., supra; Metropolitan Bd. of Zoning App. v. Sheehan Const. Co., supra.

In our case, Taylor-Chalmers alleges that by destroying the "highest and best use" of the property, the Board has substantially interfered with Taylor-Chalmers' right of alienation. Taylor-Chalmers has not shown this by the evidence. There is no evidence that the property is now under greater zoning restrictions, or that it must be rezoned to be used. ¹ There is no evidence that the property cannot be sold for its remaining zoned uses, or indeed for the zoned use of "commercial or accomodation business." In addition, Taylor-Chalmers has presented no evidence to show that the injury to the property is not incidental or inconsequential, i.e., peculiar to the property and not suffered in common with the general public. State v. Stefaniak, supra at 637, 638, 238 N.E.2d at 455; City of Gary, etc. v. Ruberto, supra.

When reviewing a grant or denial of summary judgment we construe the evidence in the light most favorable to the non-moving party. Law v. Yukon Delta, Inc. (1984), Ind.App., 458 N.E.2d 677, 678. In the present case there is no evidence to construe in Taylor-Chalmers' favor. Taylor-Chalmers does not provide any evidence to support its claim. We therefore affirm the trial court in its grant of summary judgment in favor of the Board.

Affirmed.

GARRARD, J., concurs with opinion.

HOFFMAN, J., concurs in result with opinion.

GARRARD, Judge, concurring.

The county authorized and commenced operation of a sanitary landfill upon a tract of land adjacent to that owned by appellants (Taylor-Chalmers). It is undisputed that (1) the county was legally entitled to operate a landfill upon that location; (2) the county took no land belonging to Taylor-Chalmers; and (3) the operation of the landfill has created no nuisance affecting the ownership interests of Taylor-Chalmers.

Taylor-Chalmers instituted this action for inverse condemnation ¹ alleging that the mere action of locating a sanitary landfill next to its property reduced the highest and best ² use to which its tract of land might be put and, thus, constituted a taking without just compensation. ³

The traditional view, acknowledged by several Indiana decisions, is that there is to "taking" in the constitutional sense with respect to owners of real estate who have no portion of their tract of land (whether for fee, easement, or temporary right-of-way) taken by the governmental action; they merely are near to or adjoin the government project. Weldon v. State (1972), 258 Ind. 143, 279 N.E.2d 554; Glendenning v. Stahley (1910), 173 Ind. 674, 91 N.E. 234; Merchants Mut. Tel. Co. v. Hirschman (1909), 43 Ind.App. 283, 87 N.E. 238; Evansville & R.R. Co. v. Charlton (1893), 6 Ind.App. 56, 33 N.E. 129. Compare, however, State v. Stefaniak, supra.

Similarly, the traditional view, also espoused in Indiana, has been that acts done in the proper exercise of governmental powers requiring adherence to regulations and statutes which promote order, safety, health and general welfare do not amount to a taking within the contemplation of the fifth amendment or article 1, section 21 of the Indiana Constitution. State v. Ensley (1960), 240 Ind. 472, 164 N.E.2d 342, 346; Foreman v. State ex rel. Dept. of Natural Resources (1979), 180 Ind.App. 94, 387 N.E.2d 455; City of Gary v. Ruberto (1976), 171 Ind.App. 1, 354 N.E.2d 786.

There is, however, the so-called modern view which points toward a recognition of compensable intrusions beyond those recognized in the classic eminent domain proceeding. This view appears largely traceable to the Supreme Court's 1946 decision in United States v. Causby (1946), 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.

In Causby the plaintiffs' chicken raising business had been destroyed and their enjoyment of their residence impaired due to the frequent and regular flights of army and navy aircraft at low altitude over their property. The federal government had leased the nearby airport outside Greensboro, North Carolina for military use because of World War II, and the landing and takeoff pattern passed aircraft over plaintiffs' property at a height of about 83 feet. Although it reversed the decision of the Court of Claims due to inadequate findings, the majority opinion agreed with the Court of Claims' determination that there was a sufficient direct invasion of plaintiffs' domain to constitute a "taking" within the constitutional sense.

While Causby has sometimes been characterized as a "right to airspace" case, the majority opinion stresses that proper concern is for "the owner's loss, not the taker's gain" and that the government's "intrusion" was so immediate and direct as to subtract from the owner's full enjoyment of his property and limit his exploitation of his ownership rights. Compare, e.g., Penn Central Transp. Co. v. City of New York (1978), 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631.

As the Court subsequently stated in Agins v. City of Tiburon (1980), 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106:

"The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the...