Plaintiff Ball State's pre-hearing brief - The Indiana Law Blog

It is difficult to understand why the Defendants outline the issues in such a manner. Defendants have
adrllittedBall State is a condemnor. (See Memorandum, p. 4). Although the Defendants have
confused the issue as to current ownership of the property, Ball State will admit that the Trust
constitutes a private person for purposes of this eminent domain action.
Defendants argue that I.C. 32-24-4.5 governs their objection On this point, Defendants are
simply wrong. I.C. 32-24-4.5 does not apply to state educational institutions. The legislature has
specifically exempted state educational institutions from the definition of "public agency" subject to this
particular eminent domain legislation. See I.e. 32-24-4.5-5.
Assmning arguendo that I.C. 32-24-4.5 applies to Ball State, this section only applies when a
"condemnor [exercises eminent domain to acquire property] (1) from a private person, (2) with the
intent of ultimately transferring ownership or control to another private person, and (3) for a use that is
not a public use." (I.C. 32-24-4.5-1(b) (emphasis added)). This is not the case here for two separate
and independent reasons.
First, Ball State does not have the intent of ultimately transferring ownership or control to
another private person Ball State will control and own McKinley Commons. (Howard Supp., ~ 2). In
:tact, Ball State is required to take and hold title to all property acquired, including improvements on
such property, in its own name. See I.C. 21-34-3-5. Ball State does have the authority to lease real
estate, but the term may be no more than four (4) years. See I.C. 21-31-4. And the act ofleasing is
not inconsistent with a "public use" under the statute. See I.e. 32- 24-4.5-1 (a)(2). Second, and
perhaps most importantly, McKinley Commons is a public use in any event because it provides the
public with the fimdamentalservice of higher education See I.C. 32-24-4.5-1 (a)(I). Either reason
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CONCLUSION
Ball State is authorized to exercise the power of eminent domain. Ball State's intended use of
the property is a public use and for a public purpose. Defendants' assertions that Ball State intends to
ultimately transfer ownership or control to another private person and that the intended use is not a
public use are without merit. Defendants have wholly fuiled to raise an objection as to the paramount
use of the fucility. Instead, they attack the anticipated involvement of commercial tenants and a third
property management company as futal to a condenmation action. Defendants' arguments are
misplaced and contrary to applicable law. Regardless, the commercial aspects of McKinley Commons
will likewise serve a public use and purpose and firrther Ball State's educational mission of providing
irmnersive learning opportunities for students. Based on all of the foregoing, Defendants' objections
should be overruled.
Respectfully submitted,
DEFUR VORAN LLP
By~ 91~
Scott E. Shockley #21 3-18
James R Williams #16241-81
Matthew L. Kelsey #29313-49
400 S. Walnut Street, Suite 200
Muncie, IN 47305
(765) 2883651-Telephone
(765) 2887068-Facsimile
ATIORNEYS FOR BALL STATE
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