In an effort to provide affordable housing for their staff and faculty, the University of Notre Dame has teamed up with the Northeast Neighborhood Revitalization Organization and the City of South Bend, Indiana to build a new neighborhood comprised of 55 new single family homes.
The new neighborhood, to be known as Eddy Knolls, required the acquisition of private residences that were demolished for the new development. While most of the property was acquired amicably, several owners have yet to reach a settlement. The City is stating that the acquisition of these remaining properties is not for the actual development but for the construction of a proposed street that will service the new development.
James Masters, attorney for one of the property owners disagrees: “I think there’s a question here as to whether they really need to take their properties for a street.” “They could put that street anywhere. I think this process is designed to skirt around the protections of the law, and I don’t like it,” Masters said. Does the taking meet the ‘public use’ challenge when the road work would never have been done without the private development?
The courts will likely not interfere with the city’s right to take their property for the purpose of a road project because this taking falls under the category of ‘public use’. It doesn’t matter if the road could be constructed elsewhere, or that the road is servicing a private development; many courts have ruled on this before and have uniformly said that if the taking meets the public use for instance of a road, it is not the province of the court to determine whether the placement of the road is the wisest decision. It’s easy to forget that all roads service private owners, so the private development argument has no merit unless the taking is for the development itself.
Here’s a local news report of this story:
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