Photo and Article By: Matt Crane - Dubois County Free Press
HUNTINGBURG -- A Huntingburg property owner says that some of the improvements made to Market Street Park have hurt a business in his building as well as other businesses on Fourth Street.
In addition, Grant Schwartzentruber, owner of GSES, LLC, says the improvements were built on part of the property he owns at 317 E. 4th Street, the location of the China Wok restaurant. As such, the Washington-based attorney has filed a complaint against the city for inverse condemnation. Inverse condemnation is a legal term meaning the owner of a property is forced to sue a public entity for just compensation for land the public entity took whether the taking occurs purposefully or inadvertently.
Schwartzentrubber’s property sits to the east of the amphitheater which is located between the buildings housing China Wok and Current Blend.
In regards to the inverse condemnation, Schwartzentruber contends that during construction of the park, equipment and materials were staged on the sliver of his land that is adjacent to the amphitheater. Then, when construction was completed, an electrical transformer was installed on his property by the city.
Along with those complaints, Schwartzentruber said that a curb put in place as part of the park has restricted access to the rear of his building as well as the rear of Cecil’s Printing. According to Schwartzentruber, the curb has narrowed the entrance which is also flanked by a metal-sided building belonging to Cecil’s Printing to the point that trucks can’t turn or back into the gravel lot behind the Fourth Street businesses.
Kim Kissling of Cecil’s Printing agreed that receiving paper supplies has been problematic since the park was completed. The delivery truck for Cecil’s is able to pull into the parking lot if the driver drives the wrong way down the westbound lane of Market Street Park — the park is split by covered parking. However, when pulling out of the parking lot, the truck has issues making the turn without hitting landscaping on the other side of the lane.
The longtime Fourth Street company added that they are also concerned about delivery trucks having access to their businesses once the Fourth Street renovation is complete since delivery trucks will be restricted from the street.
The property and business owners see it as a simple fix through changes to the curb that adjoins their property and the addition of some driving surface to the opposite side of the street to allow the trucks to turn onto the westbound lane of Market Street Park’s access roads.
According to Schwartzentruber, he hired George Padgitt of Sever Storey, LLP, out of Carmel to represent him in the case after attempting to work the issue out with the city. He said that after meetings with city officials, no action was taken nor proposed by the city to remedy the situation.
“This has really hurt our tenant,” Schwartzentruber said. “Their day to day business, operation and lives is impacted. They work there and live there. If I was them, I would have left a long time ago.”
According to City Attorney Phil Schneider, the city has been in discussions with the property owners but he acknowledged the city has the right to develop its property in a way that it deems is in the best interest of the community. “In this particular case, the property that adjoins the plaintiff was never dedicated as a street. It was always platted and dedicated as public lands owned by the city and they (city) chose to develop it the way they wanted,” Schneider said.
He added that the city wants to be accomodating though. “We are investigating all possible solutions that will maintain the integrity and the aesthetics to the park and also allow whatever reasonable access the adjoining landowners need,” Schneider said.
He also stated the city was taking the solutions proposed by the landowners under consideration but added that these solutions would take time.
In regards to the complaint that equipment and supplies were put on Schwartzentruber’s property during the construction, Schneider stated the contract with the contractor performing the work “provides that they must make all arrangements for offsite storage if that is necessary.”
“If they committed a trespass, that is really between the contractor and the landowner,” he said. “The city can’t be held liable for tort complaints against its contractors.”
Moving forward, Schwartzentruber’s complaint is asking for a jury trial to determine if the city took the land from him improperly and then to determine what is just compensation for the property.
According to Schneider, if the city inadvertently took any property that was not theirs, they would pay just compensation for that property.
He explained that the city is investigating whether the surveys are consistent and whether there was an inadvertent taking.
Market Street Park opened last October.