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Date: 06-29-2021

Case Style:

Krause-Franzen Farms, Inc., et al. v. Tippecanoe School Corporation

Case Number: 21A-PL-00115

Judge: Elaine B. Brown


Plaintiff's Attorney:

Best Indianapolis Condemnation Lawyer Directory

Defendant's Attorney:


Indianapolis, IN: Civil Litigation lawyer represented Defendants in a condemnation action.

This case involves certain real property located in Tippecanoe County owned
by Landowners (the “Real Estate”) which, according to property tax assessment
records, consists of three parcels totaling approximately 42.974 acres. The Real
Estate is located to the south and adjacent to property held by TSC and upon
which Klondike Elementary School and Klondike Middle School are located.
[3] In 2013, the Tippecanoe Long Range Facility Planning Working Group, which
“discusses enrollment trends, future needs, building concerns, [and] school
boundaries,” discussed building a school in the Klondike area and identified
property for possible acquisition by TSC to recommend to the TSC School
Board. Transcript Volume II at 28. In June 2018, CSO Architects completed a
feasibility study examining enrollment growth and made “recommendations on
what a new school could look like and how many students that could
accommodate.” Id. at 38. The feasibility study presented proposals consisting
of building a new elementary school on a separate site or building a new middle
school on a separate site and renovating the existing elementary and middle
schools for use by elementary students. In November 2018, CSO Architects
updated the study and recommended that TSC “[r]elocate Klondike Middle
School to a new facility on a separate site, the location of which is to be Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 3 of 13
determined,” an approach that the TSC School Board ultimately selected.
Exhibits Volume III at 249.
[4] Meanwhile, at least as early as June 2018, TSC corresponded with Landowners
and David, Jane, and Phillip’s mother about the purchase of the Real Estate by
TSC. According to a letter written by David, Jane, and Phillip, their mother
had discussed the need for additional land with TSC’s attorney before her
[5] On August 26, 2019, the TSC School Board met with Area Plan Commission
officials to discuss county trends and developments, and the Commission was
“able to take . . . school boundary maps and overlay them on top of the county
maps” to show growth in relation to the elementary school boundaries.
Transcript Volume II at 33. A Residential Subdivision and Building Permit
Activity Report dated the same day indicates that ten major subdivisions had
been filed and approved with the Area Plan Commission from January 2016 to
August 2019 within the school boundaries of Klondike Elementary.
[6] In January 2020, TSC and Landowners were in negotiations and exchanged
“offers and . . . counteroffers” concerning the Real Estate, and TSC was “long
discussing plans and . . . intentions to . . . build [the] new Middle School and
reconfigure the existing buildings.” Id. at 47. On February 4, 2020, Dr. Scott
Hanback, the Superintendent of TSC, met with Landowners and discussed how
TSC “keeps pace with the growth” employing a “multifaceted approach” that
includes shifting boundaries to place students in schools that have capacity, and Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 4 of 13
the recent enrollment trend for the district, which showed a “steady pattern of
growth.” Id. at 43-44.
[7] On February 24, 2020, Dr. Hanback met with the TSC School Board to discuss
the land acquisition and plans for the new Klondike Middle School and gave a
presentation covering a formal facility and enrollment study completed by a
third party, the status of buildings in terms of aging and need of improvement,
the use of portable classrooms across the district, and enrollment trends by
school. Regarding the Klondike schools’ usage of portable classrooms, 1 the
presentation indicated that Klondike had previously utilized four portables prior
to building a new brick and mortar wing which worked “for a while,” and
“then just this last school year, [TSC] purchased three new portables and put
them back on the property . . . because Klondike was again running out of
space.” Id. at 32-33. On March 3, 2020, the TSC School Board authorized a
resolution ratifying a Uniform Property or Easement Offer for the Real Estate
as had been presented to Landowners, and Landowners subsequently rejected
the offer.
[8] On May 6, 2020, when “negotiation conversations with [Landowners] weren’t
productive any longer,” TSC filed a complaint for condemnation of the Real
Estate alleging that TSC was in need of additional school buildings, facilities
and related improvements for public school use, acquisition of the Real Estate
1 According to Dr. Hanback, the portables, or mobile classrooms, were used as a stopgap measure before the
renovation of existing schools or the building of new schools. Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 5 of 13
would help meet that need, and TSC intended to use the property for
construction, operation, and maintenance of school buildings and related
improvements for public school purposes. Id. at 35. On August 24, 2020,
Landowners filed an objection to TSC’s complaint, arguing that TSC’s need to
acquire the Real Estate was remote and speculative.
[9] On December 2, 2020, the court held a hearing on Landowners’ objection at
which Dr. Hanback testified that TSC asked for permission to enter the land
before initiating the suit but the Landowners declined, he had “folks . . .
standing ready” to enter the Real Estate to collect soil sampling, deal with
drainage concerns, and conduct the due diligence site planning necessary for
the overall schematic plan, and that he would move forward with such
functions if granted permission by the Landowners or the court. Id. at 51. He
testified that the TSC School Board took official action at the October meeting
to formally engage Scholer Architects, a firm which had previously worked for
its with respect to two of TSC’s other middle schools which utilized the same
base floorplan and model which TSC intended to use for Klondike Middle
School. He explained the 2020-2022 Capital Acquisition Plans, which
contained a list of all TSC proposed capital expenditures exceeding ten
thousand dollars and included a “Land” line item under 2021 and 2022 years
with a corresponding appropriation amount, and he answered affirmatively
when asked if the line items were connected to the Klondike Middle School
project and if there was “money in your budgets” to purchase the Real Estate.
Id. at 53. He testified that the line item in a Capital Projects document that Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 6 of 13
“says KMS Building” was “an abbreviation for Klondike Middle School,”
which was a “placeholder for our C.F.O. to know that she needs to begin . . .
budgeting for . . . , in [the] debt service schedule[], a very significant project,”
and indicated that 2020 was the anticipated start date, “because you begin
incurring cost on these projects . . . long before a shovel ever hits the ground.”
Id. at 54. He testified that the project had an estimated cost of fifty million
dollars, indicated the estimated start and completion date were delayed by a
year, and when asked if estimated completion in 2025 was a “good rough
estimate,” answered: “I think it could get done sooner.” Id. at 56. When asked
how financing a school was related to the land acquisition, he testified:
[T]here’s a lengthy process to . . . sell bonds and put this on our
debt service schedule. You . . . wouldn’t do that until you . . .
have your construction documents out there and, and you’re . . .
putting a shovel in the ground. So, you know, . . . I definitely
wouldn’t do it before I have title . . . on land. I don’t, . . . I
wouldn’t do that on land that I don’t own. And . . . since we
don’t own the land at this point, I would not . . . recommend to
our board to go through the steps of formally, you know, selling
bonds to acquire the cash to begin paying bills for such a project
of this magnitude.
Id. at 57. He answered affirmatively when asked if it would be irresponsible to
acquire cash through the issuance of bonds before acquiring land.
[10] When shown a report reflecting TSC’s September annual enrollment from the
1996-1997 school year through the 2020-2021 school year for each elementary Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 7 of 13
and middle school, he indicated that he did not agree that enrollment at
Klondike Elementary and Middle School was flat and testified:
[I]f you look in the Klondike row, Klondike Elementary,
September 1996, . . . you’ll see one thousand nine, that’s the
number . . . of students that attend. . . . When you see September
of 1999, you’ll see a significant drop at the Klondike Elementary
enrollment. That’s because at that time, you’ll see two new
schools that came on board in [TSC,] Wea Ridge Elementary
and Burnett Creek Elementary. . . . Then as time goes on, it
begins to stabilize. Then it begins to grow. Again, so much so
that in September of 2012, you’ll see they’re right back to a
thousand five students. Then, . . . which is very crowded for that
building . . . . But then in September of 2013, we decided to
make a school boundary change. We have just added on to the
Burnett Creek Elementary School so that it could accommodate
more students and we changed the boundaries again and we
shifted a number of students out of Klondike Elementary into the
bigger Burnett Creek Elementary School. . . . Then again, it, it
kind of stays that way for a couple of years. Then they just
continue to creep up with new, you know, residential in that
area, new students enrolling and so much so that in the last
school year, 2019, they were right back at a thousand four
students. So, they, I guess, the way I looked at it is, every time
we . . . lop off a boundary and shift kids to another school,
Klondike Elementary builds itself back up. So, it is, it is
definitely not a declining enrollment school. It . . . continues to
be one of our fastest growing elementary schools.
Id. at 58-60. He elaborated:
[W]e have to have more capacity in that quadrant of the county
and, and because the middle school is so outdated, well both
schools are outdated and need improvement, the elementary and
the middle school, . . . it’s more feasible for us to build the new Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 8 of 13
middle school, move the existing 6-8 kids to the new middle
school, go back and renovate the middle school for purposes of
probably kids grades, you know 4 or 5 or grades 3, 4 and 5. Then
that will lighten the load on the Klondike Elementary property
and we can make renovations there to make that more functional
and, and have more capacity for . . . the continued growth that
we have in that area and probably connect those two . . . .
Id. at 60.
[11] When asked to explain the practical reasons to move forward with the proposed
plan in the CSO Architects feasibility study, he indicated that the main concern
was aging facilities, which were “very difficult to . . . manage and upkeep,” it
“reaches a point where you can only do so much” given there were “undersized
areas in . . . both schools,” Klondike Elementary did not have a kitchen large
enough to serve all the elementary school and required lunches to be made at
the middle school and shuttled to the elementary school, and the electrical,
plumbing, and HVAC work would all need upgraded, which was very difficult
to do, given that “sections of that building . . . are . . . dating back to . . . the
mid-50[]s and . . . late 60[]s.” 2
Id. at 61-62. He testified the two schools were
landlocked with relation to the Klondike Road expansion project, which caused
confusion in the morning and dismissal procedures in light of the car and
school bus traffic for the approximately fifteen hundred students. He testified
the schools were not “up to . . . standard” with respect to certain security issues
2 Plaintiff’s Exhibit 4 is a construction history map of the Klondike Elementary and Middle schools and
shows that half of the buildings were constructed in or before 1974.Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 9 of 13
and TSC wanted to upgrade the facilities to make them more functional for
educational programming, citing examples in science, band, and choir classes,
and, in the case of the Middle School, to match the standards at TSC’s other
middle schools. Id. at 62. He indicated that the advantage of acquiring the
Real Estate was “to have the capacity to accommodate . . . students . . . in a
much better fashion.” Id. at 63.
[12] During cross-examination, Dr. Hanback answered affirmatively when asked if
he testified during his deposition that TSC intended to issue bonds to raise the
fifty million dollars. Concerning the public approval process needed to issue
bonds, he indicated that TSC had not yet published notice for a preliminary
determination public hearing, but testified it would know when it might do so
“[a]s soon as we can know that we own the land.” Id. at 77. When asked
about deposition testimony in which he was alleged to have indicated that “if
the referendum fails or if the remonstrance race fails the project would be killed
or delayed,” Dr. Hanback testified that there was a timeline that stated “you
have to either significantly change your project or . . . not do that particular
project . . . and retool it and come back later.” Id. at 80.
[13] On December 22, 2020, the court entered an order overruling Landowners’
objection and finding that TCS was entitled to appropriate the Real Estate,
undisputed facts demonstrated the plans to build a new Klondike Middle
School on the Real Estate were “real and not speculative,” and TSC complied
with the statute and relevant case law in demonstrating its “immediate” plans.
Appellants’ Appendix Volume II at 24. Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 10 of 13
[14] “[T]he power of eminent domain is inherently vested in the State but can be
delegated to other entities by the legislature.” Util. Ctr., Inc. d/b/a Aqua Ind.,
Inc. v. City of Fort Wayne, 985 N.E.2d 731, 733 (Ind. 2013) (quoting Vickery v.
City of Carmel, 424 N.E.2d 147, 148 (Ind. Ct. App. 1981)). Ind. Code § 20-26-5-
4(a) provides in part: “[T]he governing body acting on the school corporation’s
behalf has the following specific powers: . . . acquire . . . an interest in real
estate or real estate improvements, as the governing body considers necessary
for school purposes . . . by eminent domain . . . .”
[15] In State v. Collom, this Court 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 Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 11 of 13
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).
* * * * *
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).
720 N.E.2d 737, 741 (Ind. Ct. App. 1999).
[16] Landowners argue that TSC is acting beyond its authority by appropriating
property which is not presently necessary and point to Country Estates, Inc. v.
NIPSCO, 258 N.E.2d 54 (Ind. 1970). In Country Estates, the condemnor had “no Court of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 12 of 13
plans drawn” nor “any appropriation of money” for the construction of a
specified line, and its own engineer testified that he had “no personal
knowledge when the line would be constructed.” 258 N.E.2d at 56. In Meyer v.
NIPSCO, the companion case to Country Estates, the evidence was based on
speculation by the condemnor’s engineer that “sometime in the future, maybe
as much as six or ten years in the future, there will possibly be a necessity for an
additional line.” 258 N.E.2d 57, 58-59 (Ind. 1970). In both cases, the Indiana
Supreme Court held that NIPSCO had exceeded its statutory authority by
appropriating property which it might possibly need in the future but for which
it had no immediate plans or need. Thus, the question was not one “of a degree
of necessity to accomplish the purposes . . . in providing for . . . immediate
needs and needs in the reasonably foreseeable future,” but rather “of whether
there is any necessity whatever to justify the taking.” 258 N.E.2d at 59
(emphasis added). Accord 258 N.E.2d at 56-57 (“[T]he evidence submitted by
[condemnor’s] own engineer clearly demonstrates that the taking of the additional
50 feet was for a remote and speculative use and thus unlawful as being outside
the scope of . . . statutory authority.” (emphasis added)).
[17] The facts in Country Estates and Meyer are distinguishable from those in this
case. Here, it is apparent from a review of the evidence that the school
corporation is attempting to appropriate the Real Estate to accomplish its
educational purposes, not some future, speculative need. TSC is currently faced
with capacity conditions, security concerns, transportation issues and aging
instructional facilities. It cannot provide students in Klondike Middle SchoolCourt of Appeals of Indiana | Opinion 21A-PL-115 | June 28, 2021 Page 13 of 13
with the same educational opportunities of other students in the district, and
Klondike Elementary School relies on the Middle School to provide its students
with lunches. It is not unreasonable to infer that enrollment will continue to
rise in the Klondike schools, exacerbating the need for the additional Middle
School facility. Unlike the condemning authority in Country Estates and Meyer,
TSC is not appropriating property because it might, someday, wish to use the
property. Contrary to Landowners’ contentions, the evidence does not point
solely to a conclusion that TSC has exceeded its authority. See Rudolph Farm,
Inc. v. Greater Jasper Consol. Sch., 537 N.E.2d 1199, 1202 (Ind. Ct. App. 1989)
(“Contrary to Rudolph Farm’s contentions, the evidence does not point solely
to the conclusion that the school corporation has exceeded its authority . . . by
appropriating property without a present or fair and reasonable future need.”).

Outcome: For the foregoing reasons, we affirm the trial court.

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