FOR PUBLICATION
                                                      FILED
                                                    Jan 16 2013, 8:39 am


                                                           CLERK
                                                         of the supreme court,
                                                         court of appeals and
                                                                tax court




ATTORNEY FOR APPELLANTS:                  ATTORNEYS FOR APPELLEE:

LEANNA WEISSMAN                           GREGORY F. ZOELLER
Lawrenceburg, Indiana                     Attorney General of Indiana

                                          DAVID K. STEINER
                                          Deputy Attorney General
                                          Indianapolis, Indiana

                          IN THE
                COURT OF APPEALS OF INDIANA

NICK DOMASCHKO and EDWINA               )
DOMASCHKO, and their RESPECTIVE TRUSTS, )
et al,                                  )
                                        )
       Appellants-Defendants,           )
                                        )
              vs.                       )         No. 58A01-1206-PL-261
                                        )
STATE OF INDIANA,                       )
                                        )
       Appellee-Plaintiff.              )


                    APPEAL FROM THE OHIO CIRCUIT COURT
                       The Honorable James Humphrey, Judge
                            Cause No. 58C01-1105-PL-2


                               January 16, 2013

                        OPINION – FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Nick Domaschko, Edwina Domaschko, and their respective trusts, et al.,

(collectively “the Domaschkos”) appeal the trial court’s order of immediate appropriation

and appointment of appraisers. We affirm.

                                         Issue

      The Domaschkos raise one issue, which we restate as whether the trial court

properly determined that the State, through the Indiana Department of Transportation

(“INDOT”), was entitled by law to acquire the Domaschkos’ property.

                                         Facts

      The Domaschkos own approximately 900 acres of land in Ohio County between

State Road 56 and the Ohio River. On May 16, 2011, INDOT filed a complaint for the

appropriation of real estate in connection with a project to improve State Road 56. In

addition to temporary rights of way, INDOT sought fee simple ownership of certain

portions of the Domaschkos’ property. The Domaschkos objected, asserting that some of

the real estate INDOT was seeking to appropriate was not related to highway purposes.

INDOT filed a motion to overrule the Domaschkos’ objections. Eventually, the trial

court conducted an evidentiary hearing on the Domaschkos’ objections. On May 30,

2012, the trial court issued an order of immediate appropriation and appointment of

appraisers. The Domaschkos now appeal.

                                        Analysis

      The Domaschkos assert that two portions of the land INDOT sought to acquire are

not related to the improvement of State Road 56 and, therefore, INDOT was not

                                            2
statutorily authorized to appropriate that property. The first portion of land is a fifty-foot

buffer zone associated with the relocation of Thuermer Hollow Creek (“the Creek”). The

second is associated with a shared driveway that currently straddles two properties, one

owned by the Domasckos and the other owned by the Pate Aberdeen Water Company

(“Water Company”).

       To the extent the trial court’s judgment is based on the interpretation of a statute,

the judgment is a question of law. See Cochran v. State, 859 N.E.2d 727, 729 (Ind. Ct.

App. 2007).     “The first step in interpreting a statute is to determine whether the

legislature has spoken clearly and unambiguously on the point in question.” Id. “When a

statute is clear and unambiguous, we need not apply any rules of statutory construction

other than to require that words and phrases be taken in their plain, ordinary, and usual

sense.” Id.

       As the Domaschkos point out, pursuant to Indiana Code Section 8-23-2-4.1(4),

INDOT is responsible for the construction, reconstruction, improvement, maintenance,

and repair of state highways. Further, pursuant to Indiana Code Section 8-23-2-6(a)(1),

INDOT may “[a]cquire by purchase, gift, or condemnation, sell, abandon, own in fee or a

lesser interest, hold, or lease property in the name of the state, or otherwise dispose of or

encumber property to carry out its responsibilities.”        INDOT is also authorized to

“[p]erform all actions necessary to carry out the department’s responsibilities.” Ind.

Code § 8-23-2-6(a)(13).

       Accordingly, the Domaschkos concede, “[s]imple statutory construction leads to a

clear conclusion—INDOT can take property, but it has to be for the purpose of

                                              3
maintaining and improving state highways.” Appellant’s Br. p. 10. The Domaschkos

argue, however, that INDOT does not have the authority to acquire land to “plant trees or

to maintain driveways unrelated to road construction.” Id.

      In State v. Collom, 720 N.E.2d 737, 741 (Ind. Ct. App, 1999), we observed:

             It has long been established that the necessity of taking
             property for public use is purely a legislative question and not
             a proper subject for judicial review; where the intended use is
             public, this question may be determined by such agency and
             in such manner as the legislature may designate. Wampler v.
             Trustees of Indiana University, 241 Ind. 449, 453, 172 N.E.2d
             67, 69 (1961). Thus, “a court may not inquire into the
             administrative determination of the propriety, reasonableness,
             or necessity for the taking of property by eminent domain by
             a proper authority, except for fraud, or where the proceeding
             is a subterfuge for taking property for private use.” Cemetery
             Co. v. Warren School Twp. of Marion County, 236 Ind. 171,
             189, 139 N.E.2d 538, 546-47 (1957). As our supreme court
             has explained:

                    The courts have the right to determine the legal
                    authority and right under which the power of
                    eminent domain is exercised. This does not
                    mean, however, that the courts may assume the
                    administrative act of determining the necessity
                    or reasonableness of the decision to appropriate
                    and take the land. To us, this appears to be a
                    matter for the determination of the legislature or
                    the corporate body to whom the legislature has
                    delegated such a decision. We do not think the
                    court has the power to inquire into the wisdom
                    or propriety of such judgment unless a question
                    of fraud or bad faith is raised as where an
                    attempt is made to show that 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.

             Id., 236 Ind. at 188, 139 N.E.2d at 545 (emphasis in original).


                                            4
                                         *****

              Necessity under Indiana’s eminent domain statutes is not
              limited to the “absolute or indispensable needs of [the State],
              but is considered to be that which is reasonably proper and
              useful for the purpose sought.” See Ellis v. Public Service
              Co. of Indiana, Inc., 168 Ind. App. 269, 272, 342 N.E.2d 921,
              923 (1976) (discussing utility eminent domain proceedings).
              Moreover, “[o]ur policy should not be such as to place an
              undue burden upon the State in acquiring land for such public
              improvements as highway construction when such
              improvements are considered to be in the public interest.”
              State v. Heslar, 257 Ind. 307, 315, 274 N.E.2d 261, 266
              (1971). All issues concerning the expediency and necessity
              of the taking of private property “are exclusively for the
              legislature. Unless the action of the legislature is arbitrary,
              and the use for which the property is taken is clearly private,
              the courts will not interfere.” Guerrettaz v. Public Service
              Co. of Indiana, 227 Ind. 556, 561, 87 N.E.2d 721, 724 (1949).

In Collom, we went on to explain the burden is on the party objecting to the appropriation

to establish that the taking is not necessary for the purpose sought, and then only on the

grounds of fraud, capriciousness, or illegality in the State’s determination of necessity.

Collom, 720 N.E.2d at 742.

       To the extent the issue is properly framed as a challenge to INDOT’s statutory

authority to acquire land, as opposed to the necessity of the specific acquisition, we are

unpersuaded that the property at issue is unrelated to the improvement of State Road 56.

       Regarding the buffer zone, at the hearing, INDOT presented evidence that, as part

of the project, it wanted to realign the intersection of Thuermer Hollow Road and State

Road 56 because the intersection was at an undesirable angle and the realignment would

provide a safer intersection and adequate sight distance at the intersection. To realign the

road, INDOT would need to relocate the Creek, which runs parallel to the road. To

                                             5
relocate the Creek, INDOT was required to obtain certain permits from the Indiana

Department of Environmental Management and the U.S. Army Corps of Engineers. As

part of the permitting process, INDOT was required to mitigate the impact of the Creek

relocation by installing a fifty-foot buffer zone, which included the planting of trees,

along the relocated portions of the Creek.

       The Domaschkos claim that the acquisition of the buffer zone is unrelated to the

improvement of State Road 56 because the Creek is not a navigable waterway subject to

the Clean Water Act and, even if the Creek is subject to the Clean Water Act, adequate

mitigation can occur elsewhere. These arguments miss the mark.

       Although the Domaschkos offered the testimony of a civil engineer who stated

that the buffer zone was not necessary and that the mitigation could be done elsewhere

and Nick Domaschko testified that the Creek is often dry, INDOT offered extensive

testimony regarding the requirement of the buffer zone. For example, the environmental

manager for the project testified that it was not possible to avoid the relocation of the

Creek and that the buffer zone was required as part of the permitting process. This is

consistent with the testimony of a project engineer, who testified that the project could

not have been built without the Creek relocation and that INDOT could not have built the

project without the buffer zone. Another engineer testified that the project could not have

been built without the permits. This engineer also testified that the project could not have

been built without this land acquisition.

       This evidence established that the acquisition of the buffer zone is related to

INDOT’s responsibility to improve State Road 56. See I.C. §§ 8-23-2-6(a)(1), 8-23-2-

                                             6
6(a)(13), 8-23-2-4.1(4); see also Cochran, 859 N.E.2d at 731 (holding that INDOT was

statutorily authorized to acquire property in order to carry out its responsibility of

reconstructing state highways and perform all actions necessary to carry out such

reconstruction, including the construction of drainage facilities to accommodate

additional run-off from a reconstruction project).      Thus, the Domaschkos have not

established that INDOT was not statutorily authorized to acquire the buffer zone.

       Regarding the permanent acquisition of land to be used as a shared driveway for

the Domaschkos and the Water Company, Domaschkos assert that a permanent right of

way is unnecessary because the Water Company has an entrance at another location.

However, INDOT presented testimony explaining that the Domaschkos’ expert’s design

was not viable and that a permanent right-of-way was necessary because “[t]he driveway

is shared by two property owners, so according to Indiana design manual, we have to take

permanent right-of-way. We cannot take temporary right-of way from one owner to

build a drive . . . for another.” Tr. p. 110. Thus, it is clear that the acquisition of this

property is related to the improvement of State Road 56 and, therefore, INDOT is

statutorily authorized to acquire the property for the driveway. See I.C. §§ 8-23-2-

6(a)(1), 8-23-2-6(a)(13), 8-23-2-4.1(4). The Domaschkos have not established that the

trial court erroneously ordered the acquisition of the property associated with the buffer

zone or the driveway.

                                       Conclusion

       Because the buffer zone and driveway are related to the improvement of State

Road 56, INDOT was statutorily authorized to acquire that property. We affirm.

                                             7
      Affirmed.

BAKER, J., and RILEY, J., concur.




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