FILED

Nov 10 2021, 8:04 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Robert A. Welsh Tramel R. Raggs
Connor H. Nolan Harris Law Firm, P.C.
Harris Welsh & Lukmann Crown Point, Indiana
Chesterton, Indiana

IN THE
COURT OF APPEALS OF INDIANA

624 Broadway, LLC, November 10, 2021

Appellant-Plaintiff, Court of Appeals Case No.
21A-CT-653
v. Appeal from the Lake Superior
Court
Gary Housing Authority, The Honorable Stephen E.
Appellee-Defendant. Scheele, Judge
Trial Court Cause No.
45D05-1910-CT-1085

Mathias, Judge.

[1] 624 Broadway, LLC appeals the trial court’s entry of summary judgment for the

Gary Housing Authority on 624 Broadway’s complaint for damages relating to

the Gary Housing Authority’s exercise of eminent domain over real property

owned by 624 Broadway. 624 Broadway raises four issues for our review,

which we restate as follows:

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 I. Whether federal law permitting an administrator
appointed by the Secretary of the United States
Department of Housing and Urban Development
(“HUD”) to act in his own discretion in the capacity of the
Gary Housing Authority preempts state laws that require a
seven-member Board of Commissioners for a local
housing authority and the approval by the fiscal body that
created the housing authority before the authority can
exercise eminent domain.

II. Whether Indiana law permits the Gary Housing Authority

to exercise eminent domain to acquire real property for a
mixed-use development that will include affordable
housing.

III. Whether 624 Broadway’s claim that the manner in which

the Gary Housing Authority exercised eminent domain
violated federal statutory and regulatory procedures is
cognizable.

IV. Whether the Gary Housing Authority’s exercise of

eminent domain over 624 Broadway’s property denied 624
Broadway of the notice and opportunity to be heard
required under Indiana Code sections 32-24-2-6 and -8.

We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History

[2] The Gary Housing Authority is a municipal corporation established by the

Gary Common Council. The Gary Housing Authority receives substantial

funds from HUD pursuant to annual contribution agreements, which

agreements require the Gary Housing Authority to meet certain affordable

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 housing standards. Those same agreements recite HUD’s federal statutory

authority to take over the Gary Housing Authority in the event HUD were to

find the Gary Housing Authority in substantial default of the contribution

agreements.

[3] In 2013, HUD designated the Gary Housing Authority as “troubled” under

federal housing law, and, based on that designation, HUD concluded that the

Gary Housing Authority was in substantial default of its contribution

agreements. Appellant’s App. Vol. IV p. 206. Accordingly, HUD entered into a

Cooperative Endeavor Agreement with the City of Gary. Pursuant to the

Cooperative Endeavor Agreement,1 the City of Gary dissolved the Gary

Housing Authority’s Board of Commissioners, and, in their place, the Secretary

of HUD appointed a HUD employee as an administrator over the Gary

Housing Authority. The Cooperative Endeavor Agreement made clear that the

HUD administrator’s role was “to serve as [the Gary Housing Authority’s]

Board of Commissioners” and, in that capacity, to “t[ake] possession of [the

Gary Housing Authority’s] assets, projects, and programs” in order to “correct

the conditions that led to [the Gary Housing Authority’s] troubled status and

recover [the Gary Housing Authority’s] performance.” Id. at 228.

[4] In 2017, the Gary Housing Authority “sought to acquire all of the properties

within the western 600 block of Broadway [Avenue] for the purpose of building

1
HUD and the City of Gary modified the Cooperative Endeavor Agreement from time to time, and, in 2019,
they converted the agreement into a Transitional Agreement.

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 a block long mixed-use development, inclusive of affordable housing.”

Appellant’s App. Vol. II p. 178. At that time, HTO Investments, LLC, owned

the real property located at 624 Broadway Avenue (“the property”). The Gary

Housing Authority then proceeded to exercise the power of eminent domain as

provided under Indiana Code sections 32-24-1-1 to -17 (“Chapter 1”), and it

ordered an appraisal of the property in late 2017 and again in late 2018. Both

appraisals valued the property at $24,000.

[5] On January 11, 2019, the Gary Housing Authority offered to purchase the

property from HTO Investments for $24,000. However, on January 15, HTO

Investments instead sold the property for $25,000 to 624 Broadway. In March,

the Gary Housing Authority performed an updated title search for the property,

which reflected 624 Broadway as the fee simple title holder. The Gary Housing

Authority then filed a complaint against 624 Broadway to acquire the property

through eminent domain. 624 Broadway filed various objections and alleged

that the Gary Housing Authority had failed to follow the proper procedures

under Chapter 1. In May, the Gary Housing Authority moved to dismiss its

complaint, which the trial court granted.

[6] On August 15, the Gary Housing Authority re-initiated eminent domain

proceedings against the property, this time as an administrative taking under

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 Indiana Code sections 32-24-2-1 to -17 (“Chapter 2”).2 Pursuant to Chapter 2,

the HUD administrator, acting as the Board of Commissioners of the Gary

Housing Authority, adopted a resolution declaring a necessity and desire for the

Gary Housing Authority to acquire the property through eminent domain. The

August 15 resolution set a September 19 hearing date for remonstrances against

the condemnation of the property. The Gary Housing Authority then published

notice of the resolution in newspapers of general circulation in the municipality

on August 21 and August 28. The Gary Housing Authority did not mail notice

of its resolution to 624 Broadway’s registered agent, John Allen.

[7] However, Allen did learn of the September 19 hearing, attended it, and spoke at

it. At the conclusion of the hearing, the Gary Housing Authority confirmed the

August 15 resolution. The Gary Housing Authority then adopted a second

resolution that listed 624 Broadway as the only affected property owner of the

condemnation and established a damage award of $75,000 for the taking of the

property. The September 19 resolution set a hearing date of October 17 for any

remonstrances against the damage award. The Gary Housing Authority

published notice of the resolution in newspapers of general circulation in the

municipality on September 21, September 28, and October 5. Again, however,

2
Chapter 2 provides an alternate procedure to Chapter 1 for a municipality exercising the power of eminent
domain. Util. Ctr., Inc. v. City of Ft. Wayne, 985 N.E.2d 731, 735 (Ind. 2013). Indiana Code section 36-7-18-
28(a)(2) permits a local housing authority to exercise the power of eminent domain under Chapter 2 in
certain circumstances.

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 the Gary Housing Authority did not provide written notice of its resolution to

Allen.

[8] Nonetheless, Allen learned of the October 17 hearing date, and 624 Broadway

hired an appraiser to assess the property. 624 Broadway then requested that the

Gary Housing Authority continue the October 17 hearing date for 624

Broadway’s appraiser to complete his valuation, but the Gary Housing

Authority denied the request. On October 16, 624 Broadway filed its complaint

against the Gary Housing Authority seeking injunctive relief based on the Gary

Housing Authority’s alleged denial of 624 Broadway’s procedural rights. 624

Broadway subsequently amended its complaint to more specifically allege a

violation of its constitutional and statutory procedural rights and to add a

request for damages.3 Meanwhile, on October 17, the Gary Housing Authority

confirmed the September 19 resolution and issued a check to 624 Broadway in

the amount of $75,000. On October 28, 624 Broadway’s appraiser completed

his valuation of the property and determined that the property had a fair market

value of $325,000.

[9] In June 2020, the Gary Housing Authority filed is motion for summary

judgment on 624 Broadway’s amended complaint. 624 Broadway responded

and also moved for summary judgment. In relevant part, 624 Broadway

3
We reject the Gary Housing Authority’s assertion that the last amended complaint did not relate back to the
October 16 filing date, and we further agree with 624 Broadway that the originally filed complaint operated
as a timely petition for judicial review from the housing authority’s October 17 decision. Thus, we need not
consider the Gary Housing Authority’s assertion that 624 Broadway’s claims were untimely.

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 asserted that the Gary Housing Authority unlawfully exercised the power of

eminent domain. 624 Broadway further asserted numerous constitutional and

statutory procedural violations based on the manner in which the Gary

Housing Authority exercised eminent domain. The Gary Housing Authority

responded that 624 Broadway’s arguments were preempted by federal law or

otherwise were not supported by the law and the facts. After a hearing, the trial

court granted the Gary Housing Authority’s motion for summary judgment,

denied 624 Broadway’s motion, and entered its order as a final judgment. This

appeal ensued.

Standard of Review
[10] 624 Broadway appeals the trial court’s entry of summary judgment for the Gary

Housing Authority as well as the court’s denial of 624 Broadway’s motion for

summary judgment. Our standard of review in summary judgment appeals is

well established. As our Supreme Court has made clear, “[w]e review summary

judgment de novo, applying the same standard as the trial court.” G&G Oil Co. v.

Cont’l W. Ins. Co., 165 N.E.3d 82, 86 (Ind. 2021).

[11] “Indiana’s distinctive summary judgment standard imposes a heavy factual

burden on the movant.” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1187

(Ind. 2016). We draw all reasonable inferences in favor of the non-moving party

and affirm summary judgment only “if the designated evidentiary matter shows

that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Id. (quoting Ind. Trial Rule 56(C)).

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 And we “give careful scrutiny to assure that the losing party is not improperly

prevented from having its day in court.” Id. (quoting Tankersley v. Parkview

Hosp., Inc., 791 N.E.2d 201, 203 (Ind. 2003)). Further, “[p]arties filing cross-

motions for summary judgment neither alters” our standard of review “nor

changes our analysis—we consider each motion separately to determine

whether the moving party is entitled to judgment as a matter of law.” G&G Oil

Co., 165 N.E.3d at 86 (quoting Erie Indem. Co. v. Estate of Harris, 99 N.E.3d 625,

629 (Ind. 2018)).

[12] Here, the parties’ arguments on summary judgment broadly fall into two

categories: whether the Gary Housing Authority had the lawful ability to

exercise eminent domain on these facts, and whether the manner in which the

Gary Housing Authority exercised that ability was consistent with

constitutional and statutory procedural guarantees. Specifically, 624 Broadway

asserts that federal law authorizing HUD to take over a troubled local housing

authority does not preempt state-law quorum and membership requirements for

the housing authority’s Board of Commissioners; that federal law granting to

the HUD administrator discretion in the management of a local housing

authority does not preempt Indiana’s requirement that a housing authority

seeking to exercise eminent domain first obtain the approval of the fiscal body

that created the housing authority; and that Indiana’s Housing Authorities Act,

I.C. §§ 36-7-18-1 to -44, prohibits a local housing authority from exercising

eminent domain to acquire real property for the purposes of a mixed-use

development that is inclusive of affordable housing. And, on its procedural

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 arguments, 624 Broadway asserts that the Gary Housing Authority was

required to follow various federal statutory and regulatory procedures and,

further, that the manner in which the Gary Housing Authority exercised

eminent domain here denied 624 Broadway proper notice and an opportunity

to be heard.

[13] We conclude that 624 Broadway’s arguments regarding whether the Gary

Housing Authority had the lawful ability to exercise eminent domain fail. We

also conclude that 624 Broadway’s procedural argument under the claimed

federal statutes and regulations is not cognizable. However, we agree with 624

Broadway that the manner in which the Gary Housing Authority exercised the

power of eminent domain here violated 624 Broadway’s state statutory rights to

notice and an opportunity to be heard.4

I. Under Federal Law, the HUD Administrator Has

Discretion to Act in the Capacity of the Gary Housing
Authority and, thus, Indiana’s Statutory Requirements
for a Board of Commissioners or for a Housing Authority
to First Obtain Approval by the Local Fiscal Body are
Preempted.
[14] We first consider 624 Broadway’s two arguments on appeal that the Gary

Housing Authority’s exercise of eminent domain was unlawful under Indiana’s

4
Because we resolve 624 Broadway’s procedural arguments under the Indiana Code, we need not consider
624 Broadway’s constitutional process arguments. Further, based on our disposition, we need not reach 624
Broadway’s alternative argument that the Gary Housing Authority’s taking of and award of damages for the
property are not supported by sufficient evidence.

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 statutory requirements relating to the authority of Boards of Commissioners of

local housing authorities. In particular, 624 Broadway first asserts that Indiana

Code section 36-7-18-5, which states that the Board of Commissioners for a

local housing authority for a city “shall” consist of “seven (7) persons,” and

Indiana Code section 36-7-18-13, which requires “[f]our (4) commissioners” of

the Board to be present for a quorum, prohibit a single HUD administrator

from acting in the capacity of the Gary Housing Authority. Second, 624

Broadway asserts that, under Indiana Code section 36-7-18-14(1), the “approval

of the fiscal body that established” the Gary Housing Authority, the Gary

Common Council, was required before the HUD Administrator could exercise

eminent domain.

[15] 624 Broadway’s argument that the Gary Housing Authority’s exercise of

eminent domain should fail due to an absence of the statutory number of

commissioners would create an impermissible conflict between state and federal

law. Under the Supremacy Clause of the United States Constitution, federal

law is “the supreme Law of the Land,” the “Laws of any state to the Contrary

notwithstanding.” U.S. Const. Art. VI, cl. 2. As the Supreme Court of the

United States has explained:

A fundamental principle of the Constitution is that Congress has

the power to preempt state law. Even without an express
provision for preemption, we have found that state law must
yield to a congressional Act in at least two circumstances. When
Congress intends federal law to “occupy the field,” state law in
that area is preempted. And even if Congress has not occupied
the field, state law is naturally preempted to the extent of any

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 conflict with a federal statute. We will find preemption where it
is impossible for a private party to comply with both state and
federal law, and where “under the circumstances of a particular
case, the challenged state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.”

Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 (2000) (cleaned up).

[16] The United States Code expressly authorizes the Secretary of HUD to appoint

an administrator to act in the capacity of a local housing authority that is in

substantial default of its agreements with HUD. Specifically, the United States

Code provides as follows:

[U]pon . . . a substantial default by a public housing agency with

respect to the covenants or conditions to which the public
housing agency is subject . . . the Secretary may—

***

(iv) take possession of all or part of the public housing agency,

including all or part of any project or program of the agency . . . .

42 U.S.C.A. § 1437d(j)(3)(A) (West 2021). If the Secretary takes possession of a

public housing agency pursuant to subparagraph (A)(iv), the Secretary may

“appoint . . . an individual . . . as an administrative receiver to assume the

responsibilities of the Secretary for the administration of all or part of the public

housing agency.” 42 U.S.C.A. § 1437d(j)(3)(B)(III)(bb). And:

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 If the Secretary (or an administrative receiver appointed by the
Secretary) takes possession of a public housing agency (including
all or part of any project or program of the agency), or if a
receiver is appointed by a court, the Secretary or receiver shall be
deemed to be acting not in the official capacity of that person or entity,
but rather in the capacity of the public housing agency, and any
liability incurred, regardless of whether the incident giving rise to
that liability occurred while the Secretary or receiver was in
possession of all or part of the public housing agency (including
all or part of any project or program of the agency), shall be the
liability of the public housing agency.

42 U.S.C.A. § 1437d(j)(3)(H) (emphasis added).

[17] Thus, as a matter of federal law, the HUD administrator exercised the authority

of the Gary Housing Authority’s Board of Commissioners. It would be

impossible for the single HUD administrator to act in the capacity of the Gary

Housing Authority if a quorum of the seven-member Board of Commissioners

was acting in that same capacity. We conclude that Indiana’s statutory

membership and quorum requirements are inconsistent with HUD’s federal

authority under 42 U.S.C.A. § 1437d when HUD has appointed an

administrator over that housing authority. Those requirements of Indiana law

must yield to the HUD administrator’s authority under the United States

Code.5

5
624 Broadway also asserts that the denial of the statutory quorum denied 624 Broadway its due process
rights. But 624 Broadway’s due-process argument is derivative of its assumption that the statutory quorum
requirement applies. As we reject that position, we conclude that 624 Broadway’s related due-process
argument is not supported by cogent reasoning, and we do not address it further.

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[18] Likewise, we cannot agree with 624 Broadway’s assertion that the HUD

administrator’s exercise of eminent domain, in his capacity as the Gary

Housing Authority, is subject to the approval of the Gary Common Council.

The United States Code grants the Secretary of HUD’s appointed

administrator, broad discretion to manage problematic housing authorities. 42

U.S.C.A. § 1437d(j)(3). For example, the United States Code directs that the

administrator may “make . . . arrangements acceptable to the Secretary and in

the best interests of the public housing residents and families . . . for managing

all, or part, of the public housing administered by the agency or of the programs

of the agency.” 42 U.S.C.A. § 1437d(j)(3)(A)(v).

[19] To require the Gary Common Council to approve the HUD administrator’s

exercise of his federal statutory discretion would create “an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.”

Crosby, 530 U.S. at 373. Where, as here, HUD has appointed an administrator

to manage a troubled local housing authority, Indiana Code section 36-7-18-

14(1)’s requirement that the local housing authority obtain the approval of the

local fiscal body before the housing authority can exercise eminent domain is

an unacceptable obstacle to the HUD administrator’s exercise of his discretion

under federal law. Thus, that requirement of Indiana law must yield to the

HUD administrator’s discretion under the United States Code. We therefore

affirm the trial court’s entry of summary judgment for the Gary Housing

Authority on 624 Broadway’s claims under Indiana Code sections 36-7-18-5, -

13, and -14(1).

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 II. 624 Broadway’s Argument that the Gary Housing Authority
is not Authorized to Exercise Eminent Domain to Acquire
Property for a Mixed-Use Development Project Fails as a
Matter of Law.
[20] 624 Broadway also argues that the Gary Housing Authority is not authorized to

exercise eminent domain to acquire property for a mixed-use development

project.6 In support of its position, 624 Broadway relies on Indiana Code

section 36-7-18-2, which provides that “[t]he clearance, replanning, and

reconstruction of the areas in which unsanitary or unsafe housing conditions

exist and the providing of safe and sanitary dwelling accommodations for

persons of low income are public uses and purposes for which public money

may be spent and private property may be acquired.” According to 624

Broadway, that language prohibits a housing authority from acquiring property

for a mixed-use development, even if that development would include

affordable housing.

[21] We cannot agree. The plain language of section 36-7-18-2 does not restrict a

housing authority from providing “safe and sanitary dwelling accommodations

for persons of low income” in a mixed-use development, or from otherwise

acquiring a specific property when that property is within an area of unsanitary

or unsafe housing conditions. Therefore, we reject 624 Broadway’s argument

6
The Gary Housing Authority does not assert on appeal that this argument is preempted by the HUD
administrator’s discretion under federal law.

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 that the Gary Housing Authority’s use of eminent domain here is contrary to

section 36-7-18-2, and we affirm the trial court’s entry of summary judgment for

the Gary Housing Authority on this issue.

III. 624 Broadway’s Argument that the Gary Housing Authority

Violated Federal Statutory and Regulatory Procedures Also
Fails as a Matter of Law.
[22] 624 Broadway next asserts numerous violations of federal procedures and

related regulations under the federal Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970, 42 U.S.C.A. §§ 4601–4655 (“the

Uniform Act”). In particular, 624 Broadway relies on section 4651 of the

Uniform Act. But section 4602 of the Uniform Act explicitly states that section

4651 creates “no rights or liabilities and shall not affect the validity of property

acquisitions . . . .” As we have previously acknowledged: “The intent of the

Congress in enacting [section] 4602 . . . could not have been expressed more

clearly: the policies set forth in [section] 4651 are advisory only, and they create

no right in the condemnee to judicial review of an agency’s property acquisition

practices.” City of Mishawaka v. Sara, 396 N.E.2d 946, 947 (Ind. Ct. App. 1979)

(citations omitted). Accordingly, we affirm the trial court’s entry of summary

judgment for the Gary Housing Authority on 624 Broadway’s claims under the

Uniform Act and associated federal regulations.

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 IV. The Gary Housing Authority Failed to Follow
Indiana’s Statutory Process Requirements
in its Exercise of the Power of Eminent Domain.
[23] We thus turn to 624 Broadway’s arguments that the Gary Housing Authority

denied 624 Broadway proper notice and an opportunity to be heard. The

designated evidence is clear that the Gary Housing Authority purported to

exercise eminent domain over the property under the procedures of Chapter 2.7

We further note that, while 624 Broadway’s complaint and brief on appeal

frame the relevant procedural arguments around constitutional provisions, the

substance of its claim and arguments on appeal are within Chapter 2, which

both parties acknowledge and address in their briefs. Appellant’s Br. at 40 n.1;

Appellee’s Br. at 24–28; see also Appellant’s App. Vol. II at 97–99. As our

supreme court has stated, “constitutional issues are to be avoided as long as

there are potentially dispositive statutory or common law issues . . . .” Edmonds

v. State, 100 N.E.3d 258, 262 (Ind. 2018) (quotation marks omitted). As we

conclude that 624 Broadway’s procedural arguments are dispositive under

Chapter 2, we need not consider the parties’ constitutional arguments.

[24] Because eminent domain statutes are in derogation of the common law rights to

property, they “must be strictly construed, both as to the extent of the power

7
As the designated evidence establishes that the Gary Housing Authority initiated eminent domain
proceedings under Chapter 2, 624 Broadway’s alternative claim for inverse condemnation must fail. See, e.g.,
Lake Cnty. v. House, 168 N.E.3d 278, 286 (Ind. Ct. App. 2021) (noting that a claim for inverse condemnation
exists if the government takes property but fails to initiate eminent domain proceedings), trans. denied.

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 and as to the manner of its exercise.” Util. Ctr., Inc. v. City of Ft. Wayne, 985

N.E.2d 731, 735 (Ind. 2013). As our supreme court has explained:

a municipality has the option of pursuing condemnation

proceedings under either the general eminent domain statute—
Chapter 1—or the eminent domain statute for cities and towns—
Chapter 2. See Michael v. City of Bloomington, 804 N.E.2d 1225,
1230 (Ind. Ct. App. 2004). We read Chapter 2 as evidencing a
legislative intent of merely providing municipalities an alternative
and streamlined procedure for taking private property. Among
other things this procedure relieves the municipality from the
burden of: first making an offer to purchase the property before
proceeding to condemn it, see I.C. § 32-24-1-3; filing a complaint
in court if the property owner does not agree with the amount of
the offer, see I.C. § 32-24-1-4; complying with detailed notice
requirements, see I.C. §§ 32-24-1-6 & 7; responding to objections
that, among other things, the municipality did not have the right
to exercise the power of eminent domain, see I.C. § 32-24-1-8;
and possibly being forced to appeal a trial court’s decision
sustaining the objection, or responding to the property owner’s
appeal in the event the trial court overrules the objection, see
id. . . .

Id. at 736 (footnote omitted).

[25] Essential to our analysis on this issue are Indiana Code sections 32-24-2-6(b)

and -8. Under section 32-24-2-6(b):

The [housing authority8] must adopt a resolution that the

municipality wants to acquire the property. The resolution must

8
Again, a local housing authority may exercise eminent domain under Chapter 2 in certain circumstances.
I.C. § 36-7-18-28(a)(2).

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 describe the property that may be injuriously or beneficially
affected. The [housing authority] shall have notice of the
resolution:

(1) published for two (2) consecutive weeks:

(A) with each publication of notice in a newspaper

of general circulation published in the municipality;
or

(B) with the first publication of notice in a

newspaper described in clause (A) and the second
publication of notice:

(i) in accordance with IC 5-3-5; and

(ii) on the official web site of the

municipality; and

(2) mailed to the owner of each piece of property affected by

the proposed acquisition.

The notice must name a date, at least thirty (30) days after the last
publication, at which time the board will receive or hear remonstrances
from persons interested in or affected by the proceeding.

(Emphases added.) Similarly, under section 32-24-2-8:

(b) When the assessments or awards are completed, the [housing

authority] shall have a written notice served upon the owner of each
piece of property, showing the amount of the assessment or award,
by:

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 (1) if the owner is a resident of the municipality, leaving a
copy of the notice at the owner’s last usual place of
residence in the municipality or by delivering a copy to the
owner personally and mailing a copy of the notice to the
owner’s address of record; or

(2) if the owner is not a resident of the municipality, by

sending the notice to the owner’s address of record by
certified mail.

***

(d) The notices must also name a day, at least thirty (30) days after
service of notice or after the last publication, on which the [housing
authority] will receive or hear remonstrances from owners with
regard to:

(1) the amount of their respective awards or assessments;

and

(2) objections to the municipality’s right to exercise the

power of eminent domain for the use sought.

(Emphases added.)

[26] Here, the designated evidence is clear. The August 15 resolution set a

September 19 hearing date for remonstrances against the condemnation of the

property. The Gary Housing Authority did not mail notice of its resolution to

624 Broadway’s registered agent, Allen, which failure was contrary to Indiana

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 Code section 32-24-2-6(b).9 The Gary Housing Authority last published notice

of that resolution on August 28. The date of the last publication was not at least

thirty days before the September 19 hearing for remonstrances, which was also

contrary to Indiana Code section 32-24-2-6(b).

[27] At the September 19 hearing, Gary Housing Authority adopted a second

resolution that listed 624 Broadway as the only property owner affected by the

condemnation and established an award of $75,000 for the taking of the

property. The September 19 resolution set a hearing date of October 17 for any

remonstrances against the damage award. The Gary Housing Authority again

did not serve written notice of that resolution to Allen, which was contrary to

Indiana Code section 32-24-2-8(b). The Gary Housing Authority last published

notice of the resolution on October 5. The date of the last publication was not at

least thirty days before the October 17 hearing for remonstrances against that

resolution, which was contrary to Indiana Code section 32-24-2-8(d).

[28] It is well-settled that the exercise of eminent domain under Chapter 2 is to be

“strictly construed, both as to the extent of the power and as to the manner of

its exercise.” Util. Ctr., Inc., 985 N.E.2d at 735. The Gary Housing Authority

did not follow the procedural notice requirements of Chapter 2 when it failed to

9
The Gary Housing Authority asserts that Indiana Code section 32-24-2-6(b)(1) and (b)(2) are disjunctive
such that notice by publication alone is sufficient under the statute. We reject that reading of the statute,
which ignores the “and” immediately before subparagraph (b)(2). Further, even if the statute were
ambiguous, our canons of construction would require us to strictly construe it for the property owner, which
would also result in applying the “and” to subparagraph (b)(2). See Util. Ctr., Inc., 985 N.E.2d at 735.

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 serve written notice of both the August 15 resolution and the September 19

resolution on Allen. And it did not follow the procedural opportunity-to-be-

heard requirements of Chapter 2 when it held the hearings on each resolution

fewer than thirty days after each resolution’s date of last publication.

[29] Further, while the Gary Housing Authority suggests that its failure to serve

written notice of the resolutions on Allen was harmless as he still learned of the

two meetings and attended, we cannot agree. 624 Broadway moved to continue

the October 17 hearing to obtain its own appraisal of the property, which

motion the Gary Housing Authority denied. The Gary Housing Authority’s

failure to properly serve 624 Broadway and its failure to hold its damages

hearing no fewer than thirty days after the date of last publication contributed to

624 Broadway’s inability to obtain its own appraisal of the property prior to the

October 17 hearing and to 624 Broadway’s inability to present competing

evidence of its damages at that hearing. We cannot say with confidence that,

had the Gary Housing Authority complied with Chapter 2, as it was required to

do, it would have assessed the same damage award for the property to 624

Broadway.

[30] Therefore, we reverse the trial court’s entry of summary judgment for the Gary

Housing Authority based on the Gary Housing Authority’s failure to comply

with Chapter 2, and we likewise reverse the court’s denial of 624 Broadway’s

related motion for summary judgment. The designated evidence establishes no

genuine issue of material fact regarding whether the Gary Housing Authority

complied with the notice and opportunity-to-be-heard requirements of Chapter

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 2. It did not. As the Gary Housing Authority’s taking of the property was

contrary to law, we remand with instructions to enter summary judgment for

624 Broadway on its claim that the Gary Housing Authority’s administrative

taking of the property violated 624 Broadway’s procedural rights under Chapter

2, to vacate the Gary Housing Authority’s administrative taking of the property,

and to hold any further proceedings that are consistent with this opinion.

Conclusion
[31] In sum, we affirm the trial court’s entry of summary judgment for the Gary

Housing Authority on 624 Broadway’s claims under Indiana Code sections 36-

7-18-2, -5, -13, and -14(1). We also affirm the trial court’s entry of summary

judgment for the Gary Housing Authority on 624 Broadway’s claims under the

Uniform Act and associated federal regulations. However, the trial court erred

when it granted the Gary Housing Authority’s motion for summary judgment

on 624 Broadway’s claims under Chapter 2 and denied 624 Broadway’s related

motion for summary judgment on that issue. Thus, we reverse the trial court’s

judgment and remand with instructions for the court to enter summary

judgment for 624 Broadway on its claim that the Gary Housing Authority’s

administrative taking of the property violated 624 Broadway’s procedural rights

under Chapter 2, to vacate the Gary Housing Authority’s administrative taking

of the property, and to hold any further proceedings that are consistent with this

opinion.

[32] Affirmed in part, reversed in part, and remanded with instructions.

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Tavitas, J., and Weissmann, J., concur.

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