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Guzzo v. Town of St. John

Court of Appeals of Indiana

October 11, 2018

David Joseph Guzzo, Robert Glenn Guzzo, and Betty Jo Keller, Appellants-Defendants,
v.
Town of St. John, Lake County, Indiana, Appellee-Plaintiff.

          Appeal from the Lake Superior Court The Honorable Diane Kavadias Schneider, Judge Trial Court Cause No. 45D11-1403-PL-37

          Attorneys for Appellants Libby Yin Goodknight Krieg DeVault LLP Indianapolis, Indiana

          Shannon L. Noder Krieg DeVault LLP Merrillville, Indiana

          G. Michael Schopmeyer Michael E. DiRienzo Kahn, Dees, Donovan & Kahn, LLP Evansville, Indiana

          Attorneys for Appellee David M. Austgen Michael J. Jasaitis Michael L. Muenich Ryan A. Deutmeyer Austgen Kuiper Jasaitis P.C. Crown Point, Indiana

          Bradford, Judge.

         Case Summary [1]

         [¶1] David Joseph Guzzo, Robert Glenn Guzzo, and Betty Jo Keller ("the Guzzos") appeal from the trial court's entry of summary judgment in favor of the Town of St. John, Lake County ("the Town"), in its eminent domain action against land once owned by the Guzzos ("the Property"). The Guzzos challenge the trial court's conclusion that they are only entitled to receive 100% of the fair market value of the Property. The Guzzos claim that the Property was either a "parcel of real property occupied by the owner as a residence," which would entitle them to receive 150% of its fair market value, or "agricultural land," which would entitle them to 125% of its fair market value. Because we disagree with both contentions, we affirm.

         Facts and Procedural History

         [¶2] From approximately 1966 until he passed away in 1990, James Robert Guzzo was the owner of the Property, consisting of two parcels of land (the "North Parcel" and the "South Parcel") located in St. John, Indiana, along U.S. 41. Altogether, the Property consisted of approximately 8.65 acres of wooded, untillable land upon which was a house and a barn, among other improvements. The North Parcel was located in a "C-2" highway commercial zoning district while the South Parcel was located in an "I" light industrial zoning district. Due to the age of the Property and the fact that the house predated the current Town zoning ordinance, the Property was treated as a legal non-conforming use. Pursuant to the zoning ordinance, a non-conforming use ceases six months after the Property is abandoned, a "crops only" agricultural use is permitted in a I zoning district, and commercial greenhouses and/or nurseries are permitted in C-2 zoning district. Other than these types of agricultural uses, none of which actually occurred, the Property could not be used for agriculture pursuant to the zoning ordinance.

         [¶3] Upon James's death, the Property was transferred to the Guzzos, subject to a life estate reserved for Rosemary Rokosz-Guzzo. In September of 2009, Rosemary vacated the Property, and on December 18, 2009, she quitclaimed her life-estate interest to the Guzzos. After Rosemary vacated the Property, neither any of the Guzzos nor any other person resided on the Property. Northern Indiana Public Service Company terminated the gas and electric service, also in December of 2009, and removed the utility meters the next year. Gas and electric services to the Property were never restored.

         [¶4] When the Guzzos owned the Property, no agricultural crops were grown or harvested nor were any agricultural animals, birds, or other creatures grown, raised, husbanded, or otherwise maintained on it. Moreover, the Guzzos have never offered any evidence to suggest that they had any agriculturally-related plan for the Property. The Guzzos have produced no federal, local, or state tax returns that show that any income was received as a consequence of the conduct of agricultural activities on the Property, and the Property was never assessed as "agricultural" during their ownership.

         [¶5] Sometime, apparently in 2013, the Town engaged appraisers to value the Property. At the time the appraisals were completed, it was noted that the residence had been vacant for at least a year. On or about December 30, 2013, the Town entered into an agreement with a developer which involved the proposed development of the Property along with additional public improvements related to U.S. 41. On February 3, 2014, the Town issued a "Uniform Property Acquisition Offer" to each of the Guzzos, in compliance with applicable law, seeking to purchase the Property for a "Roadway Improvement and Economic Development Project." Appellants' App. II pp. 189, 192, 195, 198, 201, 204. On March 18, 2014, the Guzzos rejected the Town's offer.

         [¶6] On March 28, 2014, the Town instituted condemnation proceedings. On July 31, 2014, the trial court approved and entered an agreed order of appropriation of real estate and appointment of appraisers, pursuant to which the Property was appropriated by the Town and was to be appraised by three court-appointed appraisers. The Property was formally transferred to the Town ...


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