Town Council of New Harmony v. Parker, 87S01-9911-CV-673.

• Decision Date: 18 April 2000
• Docket Number: No. 87S01-9911-CV-673.,87S01-9911-CV-673.
• Citation: 726 N.E.2d 1217
• Parties: TOWN COUNCIL OF NEW HARMONY, Indiana, Appellant (Defendant Below), v. Shirley PARKER, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

726 N.E.2d 1217

TOWN COUNCIL OF NEW HARMONY, Indiana, Appellant (Defendant Below), v. Shirley PARKER, Appellee (Plaintiff Below).

No. 87S01-9911-CV-673.

Supreme Court of Indiana.

April 18, 2000.

R. Thomas Bodkin, Shellie Deffendall Kyle, Charles L. Berger, Evansville, Indiana, Karl L. Mulvaney, Douglas D. Church, Indianapolis, Indiana, Attorneys for Appellant.

Robert Faulkner, Leslie C. Shively, Evansville, Indiana, Attorneys for Appellee.

Jeffrey A. Modisett, Attorney General of Indiana, A. Scott Chinn, Geoffrey Slaughter, Special Counsels to the Attorney General, Attorneys for Amicus Curiae State of Indiana. SHEPARD, Chief Justice.

Shirley Parker owns land that Robert Dale Owen and Richard Owen added to the Town of New Harmony during the nineteenth century. It was undeveloped ground on the edge of town then, and it still is. Parker wishes to sell or develop her land, and she sued the Town seeking installation of various utilities at the Town's expense. The trial court held that the absence of these utilities constituted a taking of Parker's land. It was not.

Facts and Procedural History

In 1871, some subdivided land called Richard Owens' Addition to New Harmony ("the Addition") was platted and recorded in the Posey County Recorder's Office. In 1874, another subdivision called Robert Dale Owens' Eastern Enlargement of New Harmony ("the Enlargement") was similarly platted. On May 10, 1882, the New Harmony Board of Trustees passed an ordinance annexing both the Addition and the Enlargement as a part of the town.

A hundred years later in 1982, Shirley Parker purchased parts of the Enlargement, lots 10 through 17, and the east half of lot 18. In 1990, she purchased lots 1 through 8 of the Addition.

On February 28, 1995, her husband Don Parker attended a Town Council meeting and asked the Town to extend various utilities to these properties.¹ Don Parker presented plans for developing the property, which included placing a house trailer on at least one of the lots. During the meeting, Parker turned around to town zoning administrator Gerald Blaylock and said, "[I]f you give the permits then, you know, something would have to happen." (R. at 365.) Blaylock replied, "I can't do that," (id.), believing that Parker would be unable to comply with the applicable zoning ordinance. It required utility hook-up within two weeks of placing a trailer on the property, and not all the utility services were available. Precisely what Parker wished to do with the land is unclear, inasmuch as he never sought a permit of any kind.

On March 9, 1995, attorney Charles Berger wrote the following to Parker on the Town's behalf:

As we understand your request as made orally by your husband, you are requesting that the Town of New Harmony provide streets, water, sewer, and gas to each of the sixteen (16) lots that you are developing. The Town of New Harmony is more than happy to provide these services to you, but we must advise you that pursuant to the laws of the State of Indiana as contained under Title 36 at I.C. § 36-9-36-2, et seq., the Town of New Harmony will assess each of the lots at their pro rata share for the costs of the extension of these services. The statute for assessing the sewer services can be found at I.C. § 36-9-23-29.

If you are requesting that the Town provide these services, we will need for you [to] do so in writing, and we will then proceed with the preliminary steps necessary to have these matters properly considered by the Board, including the costs of obtaining preliminary cost studies, publishing notices of plan improvements and assessments, holding public hearings, and the conducting of said hearings. All of the costs associated, including the hearing stage, will be assessed against the lots on a pro rata basis of one-sixteenth (1/16) of the total cost if this is your desire. We await your reply if you are interested in pursuing this matter with the Town making said improvements.

(R. at 386.) This offer was, of course, not what Parker hoped for and was thus not implemented.

The following year, the Town received safety complaints about vehicles running off the end of a paved street that dead-ended into the west end of Parker's land, ("four-wheelers and two-wheelers tearing up the dirt and disturbing the neighbors," (R. at 396)). In October, the Town Board authorized placing a chain across the street at the point where the pavement stopped.

On February 26, 1996, Parker filed a complaint for declaratory judgment, stating that New Harmony had refused to "extend all municipal utilities ... at its sole expense." (R. at 14, 43.)² Following a bench trial, the court entered findings of fact and conclusions of law, declaring that New Harmony was required to provide streets, sidewalks, and utilities to Parker's property, and that failure to provide these services constituted a taking. The court also concluded that placing a chain across the street resulted in a taking of Parker's property.

The court ordered New Harmony to submit a plan for providing the improvements it had ordered. New Harmony submitted a plan offering two proposals: 1) that the Town "dis-annex" Parker's property, or 2) that the Town extend the requested infrastructure and assess Parker for a portion of the costs of the improvements pursuant to Ind.Code § 36-9-36-1, the "Barrett Law." The court declared these proposals inadequate and appointed appraisers to assess damages to Parker's property, although the record does not contain any instructions about how the damages were to be assessed.

New Harmony appealed, and the Court of Appeals affirmed. Town Council of New Harmony v. Parker, 707 N.E.2d 1002 (Ind.Ct.App.1999). We granted transfer.

I. Takings Law

The Fifth Amendment says, "[N]or shall private property be taken for public use, without just compensation." U.S. Const. amend. V.³ While there can be little doubt that the framers intended that the amendment apply only to physical acquisition or invasion of property by the national government,⁴ the Takings Clause later became incorporated into the Fourteenth Amendment and thereby made applicable to the States. Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). Later still, the U.S. Supreme Court declared that a taking might occur even where there was no acquisition. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) ("[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.")

Still, aside from acquisition or invasion most government regulation of property does not offend the Takings Clause. See, e.g., Herrington v. Sonoma County, 834 F.2d 1488 (9th Cir.1987)

(disapproval of development plans not a taking), cert. denied, 489 U.S. 1090, 109 S.Ct. 1557, 103 L.Ed.2d 860 (1989); Major Media of the Southeast, Inc. v. City of Raleigh, 792 F.2d 1269 (4th Cir.1986) (requiring billboard removal five and a half years after adoption of ordinance not a taking), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987); Landmark Land Co. v. City of Denver, 728 P.2d 1281, 1287 (Colo.1986) ("it must be shown that the `ordinance precludes use of [the] property for any reasonable purpose'"; building limitations intended to promote view of mountains not a taking), appeal dismissed sub nom., Harsh Inv. Corp. v. City of Denver, 483 U.S. 1001, 107 S.Ct. 3222, 97 L.Ed.2d 729 (1987).

The Supreme Court has held that the government may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to pay under the full scope of the State's police power. This may be done when the regulation proscribes "harmful or noxious" uses of property, although the proscribed use need not rise to this level. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1022, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)

.

As Justice Scalia observed in writing for the Court in Lucas, where the state reasonably concludes that "the health, safety, morals, or general welfare would be promoted by prohibiting particular contemplated uses of land," compensation need not accompany prohibition. Id. (quoting Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)). Moreover, a landowner is not entitled to unlimited access to abutting property at all points along a highway, nor does a taking occur where ingress and egress is made more circuitous and difficult. State v. Ensley, 240 Ind. 472, 489, 164 N.E.2d 342, 350 (1960); see also Jenkins v. Board of County Comm'rs, 698 N.E.2d 1268, 1271 (Ind. Ct.App.1998),

trans. denied.

II. The Chain Across the Street

The Town claims the trial court erred in determining a taking occurred when the Town placed a chain across the unimproved portion of South Street, bordering Parker's property. (Appellant's Br. at 23.)⁵

The record reveals that although Parker's property is subdivided as lots, it is functionally one inclusive piece of undeveloped land. The property is roughly rectangular, and it is bordered by three streets, or at least by right of way dedicated for future streets. Steam Mill Street is actually a paved street that runs along the northern edge of Parker's property. South Street is just "two wheel tracks" along the southern edge. (R. at 73, 197, 306, 320.) First, Second, and Third Streets run North to South; they are paved or rocked until they reach Ms. Parker's undeveloped holding. (R. at 357.) In sum, there are no paved streets leading into Parker's property.

In the present case, the decision to place a chain across South Street did not deprive Parker of access to her property, as it is accessible by a wide variety of streets and rights of way. Parker presents no reason why access through South Street was particularly important or how her inconvenience in using the alternate routes was greater than that suffered by the general public. See Young v....