 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be                                            Jul 03 2013, 7:12 am
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

RUDOLPH WM. SAVICH                                  GREGORY F. ZOELLER
Bloomington, Indiana                                Attorney General of Indiana

                                                    DAVID L. STEINER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

THOMAS R. TOKARSKI                                  )
and SANDRA W. TOKARSKI,                             )
                                                    )
       Appellant-Defendant,                         )
                                                    )
           vs.                                      )      No. 53A01-1211-PL-498
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )

                      APPEAL FROM THE MONROE CIRCUIT COURT
                           The Honorable Frances G. Hill, Judge
                              Cause No. 53C06-1203-PL-441



                                           July 3, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       The State of Indiana filed a complaint for eminent domain in Monroe Circuit

Court seeking to condemn real property owned by Thomas and Sandra Tokarski (“the

Tokarskis”) for the purpose of constructing a portion of Interstate Highway 69 (“I-69”)

through Monroe County, Indiana.         The Tokarskis objected to the complaint, and

thereafter, the trial court struck their objections and issued an Order of Appropriation and

Appointment of Appraisers. The Tokarskis appeal and raise two issues:

       I. Whether, as a condition precedent to the condemnation proceedings, the State
       was required to make an offer to purchase the entirety of the real estate that the
       State appropriated; and,

       II. Whether the State’s condemnation of the Tokarskis’ real estate is capricious,
       fraudulent, or illegal because it fails to comply with federal environmental laws
       and regulations

       We affirm.

                             Facts and Procedural History

       The Tokarskis own three adjacent parcels of real estate totaling 34.66 acres in

Indian Creek Township, Monroe County, Indiana. On March 2, 2012, the State, on

behalf of the Indiana Department of Transportation (“INDOT”), filed a complaint for

appropriation of real estate to acquire a parcel of the Tokarskis’ real estate for the

purpose of constructing a portion of I-69.

       In the complaint, the State described the appropriated real estate as “INDOT

Parcel 35.” Appellant’s App. p. 27. Parcel 35 was specifically described in exhibit “A”

attached to the complaint and a sketch illustrating Parcel 35 was attached as exhibit “B”.

The legal description of Parcel 35 refers to two parcels of land, one being 2.422 acres and

the other being 2.381 acres. Id. at 31-32. Exhibit “B” illustrates the two parcels by

                                             2
referring to them as Parcel 35 and Parcel 35A. Id. at 33. The State alleged in the

complaint that it had offered the Tokarskis $22,500 for Parcel 35, but the offer had been

rejected. Id. at 28.

       The Tokarskis filed Objections to the Proceedings and argued 1) that the State’s

complaint should be dismissed because it failed to offer to purchase the entire parcel of

real estate that the State sought to acquire; and 2) that the State’s appropriation of the real

estate is capricious, fraudulent, or illegal because it fails to comply with federal

environmental laws and regulations. On the State’s motion, the trial court struck the

Tokarskis’ objections, and shortly thereafter issued its Order of Appropriation and

Appointment Appraisers from which the Tokarskis now appeal.

                             I. The State’s Offer to Purchase

       “As a condition precedent to filing a complaint in condemnation,” a condemnor

must first make an offer to purchase the property. Ind. Code § 32-24-1-5 (2006). The

State made an offer to purchase the Tokarskis’ property, but the Tokarskis argue that the

State’s offer to purchase their property was not an offer for the entire parcel of real estate

it later sought to appropriate. Therefore, the Tokarskis claim that because the State failed

to satisfy a condition precedent to the initiation of eminent domain proceedings, the trial

court was deprived of subject matter jurisdiction. Appellant’s Br. at 29 (citing Ind. Trial

Rule 9(C); Ind. & Mich. Elec. Co. v. Terre Haute Indus., Inc., 507 N.E.2d 588, 600 (Ind.

Ct. App. 1987), trans. denied (stating that failure to perform a condition precedent is an

affirmative defense)).



                                              3
       Although Indiana Code section 32-24-1-5 requires an offer to purchase, Indiana

Code section 32-24-1-13(a) (2002) specifically exempts INDOT from proving that an

offer to purchase was made. See Burd Management, LLC v. State, 831 N.E.2d 104, 109

(Ind. 2005) (“Though section [32-24-1-5] required INDOT to make a good-faith offer . . .,

section [32-24-1-13] dictates that INDOT was not required to prove in subsequent

condemnation litigation that it made such an offer.”). In Boyd v. State, 976 N.E.2d 767,

770 (Ind. Ct. App. 2012), trans. denied, the landowners argued that INDOT failed to

make an offer to purchase “all of the real estate interests” it later condemned. Attempting

to circumvent our supreme court’s holding in Burd, the landowners argued that section

32-24-1-13(a), “means only that INDOT’s failure to perform the condition precedent of

making an offer to purchase must be raised by the landowner as an affirmative defense,

rather than something INDOT must prove in every proceeding.” Our court rejected that

argument and observed that this issue was settled in Burd. Boyd, 976 N.E.2d at 770.

       The Tokarskis raise a slightly different variation of the same argument in this

appeal. They claim that their “argument is not that INDOT’s offer was not made in good

faith. Rather, [they] argue that no effective offer was made at all with regard to the

property identified as Parcel 35A.” Appellant’s Br. at 29 (stating that references to Parcel

35 are reasonably understood to mean only that parcel and not Parcel 35 and 35A).

Whether the issue is raised as an objection to the condemnation proceedings or as an

affirmative defense, and for the same reasons expressed in Burd and Boyd, we conclude

that INDOT is not required to prove that it made an offer to purchase the property even



                                             4
where the party alleges that the offer to purchase did not include all of the property at

issue.

II. Is the State’s Appropriation of the Real Estate Capricious, Fraudulent, or

Illegal?

         The State has inherent authority to take private property for public use. Sagarin v.

City of Bloomington, 932 N.E.2d 739, 744 (Ind. Ct. App. 2010), trans. denied (citing

Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind. 2010)). Eminent domain

proceedings for the seizure of private property are powerful instruments of government.

Id. (citing Derloshon v. City of Fort Wayne ex rel. Dep’t of Redevelopment, 250 Ind. 163,

166, 234 N.E.2d 269, 271 (1968)). If the governmental entity plans to use the land for a

public purpose that is constitutional, there are few defenses to prevent a taking. Id. And

our courts will not infringe upon the administrative act of determining the necessity or

reasonableness of the decision to appropriate and take land. Indianapolis Power & Light

Co. v. Barnard, 175 Ind. App. 308, 312, 371 N.E.2d 408, 411 (1978). See also Boyd, 976

N.E.2d at 768-69 (“The taking of private property for public purposes like roads and

schools has historically been treated, constitutionally speaking, as a matter consigned to

legislative judgment.”).

         Like the trial court, we restrict our review to whether the condemnation

proceedings were legal, whether the condemning authority had authority to condemn the

property in question, and whether the property was to be taken for a public purpose. City

of Evansville ex rel. Dep’t of Redevelopment v. Reising, 547 N.E.2d 1106, 1111 (Ind. Ct.

App. 1989), trans. denied; see also Ind. Code § 32-24-1-8. But we also have the power to

                                              5
question whether the condemnation was fraudulent, capricious, or illegal. Reising, 547

N.E.2d at 1111. When we consider allegations of fraud or bad faith, we are limited to

determining whether there was fraud, bad faith, capriciousness, or illegality as to the

necessity of the taking, i.e., whether “the property taken will not be used for a public

purpose, or the proceeding is a subterfuge to convey the property to a private use.”

Cemetery Co. v. Warren Sch. Twp. of Marion Cty., 236 Ind. 171, 188, 139 N.E.2d 538,

546 (Ind. 1957).

          The Tokarskis argue that the order of appropriation is capricious, fraudulent, or

illegal because INDOT has violated federal environmental laws and regulations in its

planning and construction of I-69. Counsel for the Tokarskis has raised this argument

unsuccessfully in two separate I-69 condemnation appeals.1 In Knott v. State, 973

N.E.2d 1259, 1263 (Ind. Ct. App. 2012), trans. denied, our court explained:

          While the Knotts object to the acquisition of their property on the grounds
          that the State failed to comply with [National Environmental Policy Act],
          [Clean Air Act], and the Transportation Act, Indiana’s eminent domain
          laws do not require the State to comply with these federal statutes prior to
          appropriating private property for a public purpose. “The issues in the
          objections stage of an eminent domain case are narrow and relate only to
          the questions related to the proposed acquisition of real estate.”

(internal citations omitted). Further, our court observed that alleged violations of federal

environmental statutes are “related to collateral issues concerning the I-69 Project” and

do not concern the acquisition of property for construction or improvement of a state

highway. Id. at 1264.



1
    Transfer proceedings were pending in those cases when the Tokarskis’ brief was filed in this appeal.
                                                      6
        In Boyd, the landowners again argued that the State’s appropriation of their

property was illegal and in bad faith because the I-69 highway project did not adequately

comply with the same environmental laws and regulations at issue in Knott. 976 N.E.2d

at 769. We observed that “the Boyds’ complaint that I-69 does not comply with federal

environmental statutes, . . . is not a question that may be litigated in connection with this

condemnation proceeding, the purpose of which is solely to determine whether the State

may appropriate the Boyds’ property for the project.” Id. (citing J.M. Foster Co. v. N.

Ind. Pub. Serv. Co., 164 Ind.App. 72, 80, 326 N.E.2d 584, 589 (1975) (determining that

an environmental impact report requirement of state law was “foreign to proceedings for

condemnation”)).

        We agree with the Boyd panel that the Tokarskis “present challenge is really to the

legality of the project, rather than to the legality of the taking. This state condemnation

action is not a vehicle through which such claims may be litigated or relitigated.”2 See id.

at 770. For this reason, the trial court properly struck the Tokarskis’ objections to the

proceedings.

                                               Conclusion

        The Tokarskis have not raised claims that are subject to review in eminent domain

proceedings.       We therefore affirm the trial court’s Order of Appropriation and

Appointment of Appraisers.




2
  In both Knott and Boyd, our court noted that claims that the State’s construction of I-69 is in violation of
federal environmental statutes and regulations are justiciable controversies that are being appropriately
litigated in federal courts. See 973 N.E.2d at 1265 n.1; 976 N.E.2d at 770.
                                                      7
      Affirmed.

BAKER, J., and MAY, J., concur.




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