518 N.E.2d 809 | Ind. Ct. App. | 1988
This is an appeal from a judgment in favor of The Little Calumet River Basin
1) whether the statute giving the Commission the power of eminent domain is unconstitutional because it gives the Commission the authority to lease taken property to a private party thereby making the use a private rather than a public one; and
whether the statute establishing the Commission and its amendment which gives the Commission the authority to take only certain property by eminent domain constitute unconstitutional class legislation which violates the landowners' right to equal protection. 2 wz
We affirm.
The Little Calumet River Basic Development Commission was established by our legislature in 1980. IC 14-6-29.5-2(a) (1982 and Supp.1986). The Commission was granted the power of eminent domain over certain land and the power to lease improvements made upon that land to private persons. Id.; IC 14-6-29.5-5(c) (1982). Due to the deaths of several boaters which occurred at the mouth of Burns Waterway, the Commission requested the federal government to expedite a study which was being conducted of Little Calumet River. The request was granted and a final report was issued in February of 1983. The report recommended that a small boat harbor be constructed which would include a new breakwater and marina. The report indicates that the U.S. Army Corps of Engineers initially explored the possibility of locating the marina south of U.S. Highway 12 either north of the west fork of the Little Calumet River (Burns Ditech) or southwest of the intersection of Little Calumet River and Burns Waterway. (Plaintiffs' Exhibit 11, p. EIS 6 and Plate 3-B-1). Apparently some of the land for these sites was owned by Midwest Steel. (Appellants' Brief, p. 6). The plan, however, was modified and the recommended marina site was located south of U.S. Highway 12 where it intersects with Burns Waterway. (Plaintiffs' Exhibit 11, p. EIS 6 and Plate 3-B-26; R. 187). Lefty's Coho Landing, Inc., a corporation whose president is Robert L. Frum, operates a marina business on this site. (Appel-lee's Brief, p. 4, R. 187). The federal government approved the plan in December of 1983.
On March 1, 1984, the Indiana legislature approved a bill which amended the statute which had established the Commission and had granted to it the power of eminent domain. 1984 Ind.Acts 94. One effect of the amendment was to except from the power of eminent domain land located north of U.S. Highway 12 and land south of where the Little Calumet River intersects with Burns Waterway. IC 14-6-29.5-2(a) (Supp.1986). Apparently, Midwest Steel owned land in both these parcels.
On March 30, 1984, the Commission signed a contract with the United States of America wherein the federal government agreed to pay for one-half of breakwater construction costs if the Commission, as local sponsor, would pay for the other half of the breakwater construction, acquire and pay for all necessary lands, and pay for the construction of a marina and ancillary facilities. The contract requires that the marina be open to all on equal terms and requires an adequate portion of the marina to be reserved for transient and refuge-seeking craft, The Commission examined several possible marina sites and selected an eighteen acre site located on the east side of Burns Waterway south of U.S. Highway 12. This site includes land owned by the Frums and Lefty's Coho Landing, Inc. The Commission filed a condemnation action and it is from a judgment in favor of the Commission from which those landowners appeal.
The landowners initially argue that because Indiana Code § 14-6-29.5 permits the Commission to lease property it has acquired by eminent domain to private parties, their land is being unconstitutionally taken for a private use. While we agree that the taking of private property through
The construction of ports, marinas, and harbors generally is considered to be a public purpose which justifies the taking of private property under the power of eminent domain.
In Opinion to the Governor, the Rhode Island Supreme Court held that a statute which permitted the condemning agency the power to lease the marina so it would be "self-liquidating," without further restrictions, unconstitutionally permitted the expending of public money for private purposes. 76 R.I. 365, 70 A.2d 817. The court's decision, however, was based upon the fact that the power to lease the marina was not defined or limited so as to require the agency to retain control of the operation by regulating the private lessee. Similarly, in Rudee Inlet Authority v. Bastian the Virginia Supreme Court held that a statute, which permitted the condemning authority to lease the entire marina, without stating that the lease was to be in furtherance of the purposes enunciated by the statute, unconstitutionally permitted the authority to take private property for private purposes. 206 Va. 906, 147 S.E.2d 131. The Indiana statute involved in this case specifically states that the "commission may enter into lease agreements ... with private persons ... on such terms and conditions as the commission deems appropriate and in furtherance of the purposes of this chapter." IC 14-6-29.5-6 (1980) (emphasis added). We interpret this language to mean that the Commission does not have the authority to lease land it has
The landowners secondly argue that the 1984 amendment to the statute which removed some of the land within the Commission's power of eminent domain constitutes class legislation which violated their constitutional rights.
Affirmed.
. A public purpose exists even though the construction benefits the general public's need for recreation rather than transportation of commercial goods. See Rudee Inlet Authority v. Bastain (1966), 206 Va. 906, 147 S.E.2d 131.
. Two Indiana cases cited by the landowners also are distinguishable in that they involved the granting of eminent domain powers to private individuals who could condemn land for their own purposes rather than a public entity which could condemn land for a public purpose and then lease it to private parties. See Fountain Park Co. v. Hensler (1927), 199 Ind. 95, 155 N.E. 465; Continental Enterprises, Inc. v. Cain (1979), 180 Ind.App. 106, 387 N.E.2d 86.
. As best we can discern, the landowners' argument is based upon an equal protection theory.
. Furthermore, it should be noted that the U.S. Army Corps. of Engineers' report did not select land owned by Midwest Steel in its final recommendation. (Plaintiff's Exhibit 11, p. EIS 6 and Plate 3-B-26). The Commission rejected land owned by Midwest Steel for possible sites for the marina prior to the effective date of the amendment and had selected the present site within a month of the approval of the amendment. (R. 86, Plaintiffs' Exhibit 1, R. 79-80). Those vested with the power of eminent domain are vested with large discretion in determining what property to condemn. Highland Realty, Inc. v. Indianapolis, Etc. (1979), 182 Ind.App. 439, 395 N.E.2d 1259. The Commission did not abuse its discretion as its selection was reasonable under the facts and circumstances of this case.
. The landowners' brief failed to contain a statement of the case and failed to cite to relevant portions of the record in support of their arguments. The latter failure not only made this case difficult to review but justified waiver of the entire appeal. Indiana Rules of Procedure, Appellate Rule 8.3(A)(7). Although this court elected to discuss the case on its merits, counsel should be reminded that citations to the parts of the record upon which he relies is necessary.