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HomeMy WebLinkAboutLegal Opinion on Land Acquisition 2012Johnson, Sandy M From: Pride, Charlie [cpride@sboa.IN.gov] Sent: Tuesday, May 22, 2012 4:34 PM To: Johnson, Sandy M Subject: RE: Right of Way acquisition Sandy: The law is very clear that the City cannot pay more than $180,000. From: Johnson, Sandy M fmailto:SMJohnsonacarmel.in.govl Sent: Tuesday, May 22, 2012 4:29 PM To: Pride, Charlie Subject: RE: Right of Way acquisition No two. Average is $180000 From: Pride, Charlie fmailto:cpride(asboa.IN.ciov1 Sent: Tuesday, May 22, 2012 3:55 PM To: Johnson, Sandy M Subject: RE: Right of Way acquisition Sandy: I assume that only one appraisal was obtained? From: Johnson, Sandy M fmailto:SMJohnsonCa)carmel.in.gov1 Sent: Tuesday, May 22, 2012 1:07 PM To: Pride, Charlie Subject: RE: Right of Way acquisition No From: Pride, Charlie fmailto:cprideCalsboa.IN.gov1 Sent: Tuesday, May 22, 2012 12:55 PM To: Johnson, Sandy M Cc: Danford, Lori Subject: RE: Right of Way acquisition Sandy: Is this purchase tied to an INDOT grant project? From: Johnson, Sandy M fmailto:SMJohnson©carmel.in.govl Sent: Tuesday, May 22, 2012 9:50 AM To: Pride, Charlie; Danford, Lori Cc: Cordray, Diana L Subject: Right of Way acquisition 1 Noble Property 127 W. 111th Street Project: Illinois Street South Extension Appraisal #1 Appraisal #2 $165,000 $195,000 Average of two appraisals: $180,000 (total amount that can be paid according to IC36-1-10.5) Purchase Price: Administrative Settlement: Moving Expense: $165,000 $ 33,000 $ 19,500 Total Amount: $217,500 Documents received at closing: Purchaser's Statement Administrative Settlement Warranty Deed Acceptance of Offer Documents required by Ordinance D-2027-11 Closing or Settlement Statement (HUD) Deed Vendor's Affidavit Non Foreign Certificate Indiana Sales Disclosure Seller's Residential Disclosure Form Indiana Responsible Property Transfer Law Document Easements Leases Form 1099-S Copy of Buyer's Report We have no confirmation of to .payments. No confirmation of liens, encumbrances or expenses. Johnson, Sandy M From: Pride, Charlie [cpride@sboa.IN.gov] Sent: Tuesday, May 22, 2012 1:51 PM To: Johnson, Sandy M Cc: Danford, Lori Subject: RE: Right of Way acquisition Then we can't see where paying more than the average of the two appraisals would be proper. From: Johnson, Sandy M fmailto:SMJohnson@carmel.in.ciovl Sent: Tuesday, May 22, 2012 1:07 PM To: Pride, Charlie Subject: RE: Right of Way acquisition No From: Pride, Charlie fmailto:cpride@@sboa.IN.govl Sent: Tuesday, May 22, 2012 12:55 PM To: Johnson, Sandy M Cc: Danford, Lori Subject: RE: Right of Way acquisition Sandy: Is this purchase tied to an INDOT grant project? From: Johnson, Sandy M fmailto:SMJohnson(alcarmel.in.govl Sent: Tuesday, May 22, 2012 9:50 AM To: Pride, Charlie; Danford, Lori Cc: Cordray, Diana L Subject: Right of Way acquisition We have a property that we are purchasing (entire parcel) for the Illinois Street project. The appraised value of the property is $165,000. We have paid the owner's $198,000 for the property - $33,000 in administrative settlement, which our City Engineer states we had to pay because they would not take a penny less... Now we are paying an additional $19,500 in moving expense (we do have several quotes, most of them are showing 7 hours of driving time). Is this okay? .sawdb_jokwsow neputcLeri-z - Asset Mawager 317 571 2022 Cordray, Diana L From: Johnson, Sandy M Sent: Thursday, May 31, 2012 7:35 AM To: Cordray, Diana L Cc: Pride, Charlie Subject: FW: Right fo way aquisition question; Noble property From: Haney, Douglas C Sent: Wednesday, May 30, 2012 3:21 PM To: Johnson, Sandy M Cc: McBride, Mike T; Engelking, Steve C Subject: Right fo way aquisition question; Noble property Sandy: I have recently been copied on an e-mail chain between Charlie Pride and you regarding the acquisition of the referenced ROW property and the monetary limitations on initial property acquisition offers. Both Mr. Pride and you are correct in that, at least as regards the acquisition at issue, the City's initial uniform offer should not exceed the average of the two appraisals obtained on the Noble property. However, that is not the end of the matter in instances in which the landowner refuses the uniform offer. In such cases, Indiana law requires the City and the landowner to enter into good faith negotiations as to the terms of property acquisition as a condition precedent to the City's filing a condemnation lawsuit. During these post -uniform offer negotiations, the terms of settlement are not limited to the average appraised value of the property sought to be acquired. In addition to an increased purchase price, these good faith settlement terms can, but are not required to, include relocation assistance. See e.g., Murray v. City of Richmond, 276 N.E.2d 519 Ind. 1971); City of Mishawaka v. Knights of Columbus, 396 N.E.2d 948 (Ind. App. 1979). It is my opinion that, given the above and pursuant to my discussions with the Department of Engineering, the terms of the Noble property acquisition were properly agreed to during post -uniform offer good faith negotiations. They also do not appear to be excessive or to otherwise violate Indiana law. Please process this payment claim on the basis of this legal opinion. Thank you for ensuring that the City follows the appropriate property acquisition procedures. Best regards. Douglas Haney Carmel City Attorney Cordray, Diana L From: Brainard, James C Sent: Monday, June 04, 2012 12:46 PM To: Finkam, Sue Cc: Haney, Douglas C; Sharp, Rick; Snyder, Luci; Cordray, Diana L; Carter, Ronald E. Rider, Kevin D; Seidensticker, Eric; Carol Schleif Subject: Re: Land purchases Diana Cordray is refusing to process the payment of a check to pay for land acquisition (condemnation) for a city project. The law says that we can initially "offer" no more than the average of our two independent appraisals. It does not say, however, that "we can't negotiate to pay more to avoid litigation after the offer is rejected. In this instance, Doug Haney made the decision to offer more than the average of the two appraisals because he believes avoiding litigation over the value of the land taking saved the taxpayers money. Diana's office in the last 17 years has processed literally hundreds of these payments that are slightly more than the average of the initial payments, including literally all of our street improvement projects, the Monon Trail etc. This is the practice around the state by cities, counties and INDOT and Diana, after 17 years, knows it. For instance, a minimum for a eminent domain case is going to be over ten thousand dollars and probably much more in expert witness fees and lawyer fees. Thus, to avoid the cost of litigation, moving costs and other things they could obtain and that we would possibly pay if we lost the damage claim in court, we sometimes offer more to avoid litigation over the price. I asked Doug Haney to personally explain the law to Sandy Johnson in Diana's office who asked the original question a week or so ago and assume he did so. I am copying the other council members so they are aware of your question and the answer. Jim On Jun 4, 2012, at 9:09 AM, "Finkam, Sue" <sfinkam@carmel.in.gov> wrote: Hi! What is she concerned about? Begin forwarded message: From: "Cordray, Diana L" <DCordray@carmel.in.gov> Date: June 4, 2012 8:48:08 AM EDT To: "Finkam, Sue" <sfinkam@carmel.in.gov> Subject: RE: Land purchases This applies to the amount of money that can be spent on land purchases. This is statutory law. I have asked the State to review all documents for their opinion. Diana L. Cordray Carmel Clerk Treasurer (317)571-2414 From: Finkam, Sue Sent: Monday, June 04, 2012 7:13 AM To: Cordray, Diana L; Sharp, Rick; 'Luci Snyder'; 'Eric Seidensticker' Subject: RE: Land purchases Diana, I know Rick sent you a note asking what your concern was, but I didn't see a response. Can you share what it is that you are researching? From: Cordray, Diana L Sent: Tuesday, May 29, 2012 3:39 PM To: Sharp, Rick; 'Luci Snyder'; 'Eric Seidensticker'; Finkam, Sue Subject: Land purchases Councilors: Please review the Indiana Statute on land purchases by municipalities. I have a similar question in the legal department but I have not received a response. This statute will apply to Illinois St., etc. Thanks. Cordray, Diana L From: Haney, Douglas C Sent: Monday, June 04, 2012 2:46 PM To: Brainard, James C; Finkam, Sue Cc: Sharp, Rick; Snyder, Luci; Seidensticker, Eric; Schleif, Carol; Rider, Kevin D; Cordray, Diana L; Carter, Ronald E Subject: RE: Land purchases Attachments: Right of Way Aquisition Question E-MaiI.PDF Attached is my e-mail to Sandy of May 301h. I was not aware of any deadline imposed by anyone on the rendering of my opinion, and therefore issued it in the ordinary course of business. The procedure used in this case is the same property purchase procedure that has been used in this city without complaint for over a decade. Once again, Charlie Pride was given only half of the information he needed to understand the real issue. Moreover, he would be the first to tell you that he is not a lawyer and does not render legal opinions as to the appropriateness of municipal property acquisition procedures. The fact is, the law requires the City to act in good faith in its post -uniform offer rejection negotiations with landowners. The negotiated settlement price at issue here seems to be well within the range of reasonableness, and certainly is nothing different from the settlements that the Clerk -Treasurer's Office has processed for the last 15 years. It would be an absolute waste of taxpayer money to be unable to settle and have to go to trial in cases such as this. The delay would be six to eighteen months, and the City would, in addition to its legal fees, risk a jury award well in excess of our normal settlement range that could then be used as an inflated comp by the owners of adjacent properties the City needs to acquire. A really bad and unnecessary result. From: Brainard, James C Sent: Monday, June 04, 2012 12:46 PM To: Finkam, Sue Cc: Haney, Douglas C; Sharp, Rick; Snyder, Luci; Cordray, Diana L; Carter, Ronald E; Rider, Kevin D; Seidensticker, Eric; Carol Schleif Subject: Re: Land purchases Diana Cordray is refusing to process the payment of a check to pay for land acquisition (condemnation) for a city project. The law says that we can initially "offer" no more than the average of our two independent appraisals. It does not say, however, that "we can't negotiate to pay more to avoid litigation after the offer is rejected. In this instance, Doug Haney made the decision to offer more than the average of the two appraisals because he believes avoiding litigation over the value of the land taking saved the taxpayers money. Diana's office in the last 17 years has processed literally hundreds of these payments that are slightly more than the average of the initial payments, including literally all of our street improvement projects, the Monon Trail etc. This is the practice around the state by cities, counties and INDOT and Diana, after 17 years, knows it. For instance, a minimum for a eminent domain case is going to be over ten thousand dollars and probably much more in expert witness fees and lawyer fees. Thus, to avoid the cost of litigation, moving costs and other things they could obtain and that we would possibly pay if we lost the damage claim in court, we sometimes offer more to avoid litigation over the price. I asked Doug Haney to personally explain the law to Sandy Johnson in Diana's office who asked the original question a week or so ago and assume he did so. I am copying the other council members so they are aware of your question and the answer. Jim On Jun 4, 2012, at 9:09 AM, "Finkam, Sue" <sfinkam@carmel.in.gov> wrote: Hi! What is she concerned about? Begin forwarded message: From: "Cordray, Diana L" <DCordray@carmel.in.gov> Date: June 4, 2012 8:48:08 AM EDT To: "Finkam, Sue" <sfinkam@carmel.in.gov> Subject: RE: Land purchases This applies to the amount of money that can be spent on land purchases. This is statutory law. I have asked the State to review all documents for their opinion. Diana L. Cordray Carmel Clerk Treasurer (317)571-2414 From: Finkam, Sue Sent: Monday, June 04, 2012 7:13 AM To: Cordray, Diana L; Sharp, Rick; 'Luci Snyder'; 'Eric Seidensticker' Subject: RE: Land purchases Diana, I know Rick sent you a note asking what your concern was, but I didn't see a response. Can you share what it is that you are researching? From: Cordray, Diana L Sent: Tuesday, May 29, 2012 3:39 PM To: Sharp, Rick; 'Luci Snyder'; 'Eric Seidensticker'; Finkam, Sue Subject: Land purchases Councilors: Please review the Indiana Statute on land purchases by municipalities. I have a similar question in the legal department but I have not received a response. This statute will apply to Illinois St., etc. Thanks. 'L Cordray, Diana L From: Cordray, Diana L Sent: Wednesday, June 06, 2012 9:05 AM To: Haney, Douglas C; Brainard, James C Cc: Carol Schleif; Eric Seidensticker; Joseph Griffiths; Kevin Rider; Luci Snyder; 'Rick Sharp'; Ronald Carter; Sue Finkham; Akers, William P; Crockett, Terry N; Duffy, John M; Engelking, Steve C; Green, Timothy J; Heck, Nancy S; Higgins, Bob; Hollibaugh, Mike P; Huffman, David; Lamb, Barbara A; McBride, Mike T; Smith, Keith Subject: Payment for Illinois St. (Noble Prop.O The following is to clarify some misinformation regarding the property on Illinois St. The wire for the purchase of the property was sent on May 14, 2012 and the moving expenses were approved on June 4, 2012. No payment has been withheld. We have sent two requests to the city attorney for interpretation of the IRS and the State Law which were received last week. We depend on these interpretations since we are on numerous list serves and including the IRS, NLC, etc. who send us updates on changes in the law which is never static. Diana L. Cordray Carmel Clerk Treasurer (317)571-2414 1 Fifth Third -.Bank: Report Page 1 of 1 Balance Detail Report City of Carmel 06/06/2012 08:44 Account: 074908594 : 00099993427 -Checking - General Account - USD Start Date: 05/14/2012 00:00 End Date: 05/14/2012 23:59 Sorted By: Account Number, Date, Credit/Debit Orientation: Portrait Report On: Previous Day Data Transaction Groups: Wire Transfer Outgoing ZBA Display: Both Credit and Debit Bank ABA# : Fifth Third Bank (Central Indiana) - 074908594 Account : 00099993427 -Checking - General Account - USD Date Transaction Type Customer Ref. # Bank Ref. # Credit Amount Debit Amount 05/14/2012 05/14/2012 Confidential Outgoing Money Transfer Description: TRN 120514-004897 051412 0514D2B74A1C002010 TO: JPMORGAN CHASE BANK, NA ABA/071000013 BNFACCT: 5330173469 BNF: BENEFIT ADMINISTRATIVE SYSTEMS LTD RFB: 1234763 Outgoing Money Transfer Description: TRN 120514-000761 051412 0514D2B74A1 C000142 TO: JPMORGAN CHASE BANK, NA ABA/021000021 BNFACCT: 758658256 BNF: CHICAGO TITLE COMPANY LLC RFB: 1234094 OBI: CITY OF CARMEL SELLER: ROSLYN L NOBLE PURCHASER: CITY OF CARMEL 102301350747 91,005.46 102301352827 199,355.58 Credits Debits Total Amount 0.00 290,361.04 Total Number of Items 0 2 https://amps.53.com/cb/servlet/cbonline/jsp/reports/inc/reportdata.jsp 6/6/2012