December 13, 2016
By: J. Eric Rochford, Attorney
If you live along the SR 37 corridor that has been identified as the I-69 Expansion Project Section Six that stretches from Indianapolis to Martinsville, you may have asked yourself the above question. Asking the state of Indiana to take your property early relates to what is called hardship/advanced acquisition or protective buying. Hardship/advanced acquisition is a method the state could use to take private property earlier than planned in order to lessen some type of health or financial situation for the property owner. Protective buying is a little different and refers to an action by the government to take a particular piece of land early to prevent imminent development and increased costs within a preferred location for the project.
For projects involving federal funding, state highway departments– or in Indiana the Indiana Department of Transportation — are authorized by the Federal Highway Administration to advance the acquisition of property, or complete an early taking of property, prior to the completion of the National Environmental Policy Act (NEPA) review. If the early land taking is federally-funded, the acquisition must be negotiated without the threat of eminent domain. However, the process and requirements for advanced acquisitions may differ if the land taking is entirely at the state’s expense, including that an early land taking may be done under the threat of eminent domain.
For hardship acquisitions, the state must obtain from Federal Highway certain approvals and determinations about the project for which the property is being taken before making the acquisition. Additionally, property owners must provide sufficient information and documentation supporting the request for a hardship acquisition. The request must be based upon health/safety or financial circumstances that pose an undue hardship on the landowner compared to others AND the inability to sell the property for its fair market value due to the impending project.
Health or safety reasons may include: debilitating illness or injury; long-term major disability or handicap that render the existing housing facility insufficient; or other extraordinary conditions that pose a significant threat to the health, safety or welfare of the occupant. Financial reasons may include: job transfer; pending bankruptcy; pending foreclosure; or other legal action or documented situation for which one may be removed from the property. In addition to the health or financial justifications, the property owner must provide documentation of the inability to sell the property for its fair market value within a reasonable exposure period (minimum of 3 months) due to the forthcoming project. Essentially, the property owners must prove that they have listed the property for at least 3 months and that they are unable to sell it due to the project.
Situations requiring hardship acquisitions can be common when dealing with a major project that is well known in the community. For example, I-69 Section 6 is a 25-mile long highway improvement project that will undoubtedly have an impact on the ability for property owners to sell their homes or commercial/industrial buildings. If you are a landowner in this area and are facing health/safety issues or financial problems, you may be eligible for a hardship acquisition.
Protective buying is a government-friendly term for the circumstance where the government may attempt to purchase property early to avoid additional costs related to development. For example, say the government intends to construct a roadway where a property owner intends to construct some type of commercial development – it is more economical for the government to proceed early with acquiring that property, in order to avoid taking it at a later date and being forced to pay the value of the property as developed. The government must clearly demonstrate that the property is scheduled to be developed imminently and that, if developed, future transportation choices would be severely limited. Cost is a consideration in the determination. It is worth noting that this is a seldom used mechanism.
An experienced attorney can be very helpful dealing with these processes, particularly due to the need to document in detail every aspect of a hardship and the property owner’s attempt to sell his/her property. If you or someone you know lives along the I-69 Section 6 Expansion Project along SR 37 and has additional questions about early land acquisition, contact me to discuss your legal rights and options.