624 Broadway LLC v. Gary Housing Authority, No. 22S-CT-140 (Ind. Aug. 29, 2022)

IN THE FILED
Indiana Supreme Court Aug 29 2022, 10:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
Supreme Court Case No. 22S-CT-140
624 Broadway, LLC,

Appellant (Plaintiff below),
–v–
Gary Housing Authority,

Appellee (Defendant below).
Argued: June 9, 2022 | Decided: August 29, 2022
Appeal from the Lake Superior Court

No. 45D05-1910-CT-1085
The Honorable Stephen E. Scheele, Judge
On Petition to Transfer from the Indiana Court of Appeals

No. 21A-CT-653
Opinion by Justice Massa

Rush, C.J., and David, Slaughter, and Goff, JJ., concur.
Massa, Justice.
The Gary Housing Authority acquired 624 Broadway, LLC’s property

through an administrative taking. It only provided notice of its taking and
hearings by publication, despite knowing how to contact 624 Broadway.
And it refused to postpone its final meeting—when it awarded damages—
to allow 624 Broadway to obtain an appraisal. 624 Broadway alleges the
notice was constitutionally deficient. Because we agree and cannot deem it
harmless, we reverse and remand.
Facts and Procedural History

624 Broadway owned commercial property in downtown Gary. The
Housing Authority wanted the property as part of its plan to redevelop
the area for mixed residential (i.e., affordable housing) and commercial
uses. In March 2019, it sued 624 Broadway to acquire the property but
soon successfully moved to dismiss the suit. It then initiated an
administrative taking under Indiana Code chapter 32-24-2. An
administrative taking—an alternative to the “traditional” lawsuit route—
occurs when an authorized governmental body condemns property and
awards damages through resolutions. See Ind. Code § 36-7-18-28(a)(2)
(2019); I.C. §§ 32-24-2-6, -10. Under the statutes then in effect, a non-
resident owner like 624 Broadway, located in nearby Schererville, was
entitled only to notice by publication.1 See I.C. §§ 32-24-2-6(b), -8(c).
On August 15, the Housing Authority adopted a resolution to acquire

the property and set September 19 as the day to receive and hear
remonstrances.2 It twice published notice of the resolution and upcoming
meeting in two area newspapers of general circulation. Around September
1The statutes were subsequently amended to require that all owners receive, at a minimum,
notice by mail during an administrative taking. See Ind. Code §§ 32-24-2-6(b), -8(b) (2020).
2Remonstrance is defined as “[a] formal protest against governmental policy, actions, or
officials.” Black’s Law Dictionary 1486–87 (10th ed. 2014).
Indiana Supreme Court | Case No. 22S-CT-140 | August 29, 2022 Page 2 of 9
9, John Allen, 624 Broadway’s registered agent, learned of the upcoming
meeting from a reporter. He attended and spoke at it. During the meeting,
the Housing Authority adopted resolutions confirming the taking,
assessing $75,000 in damages, and setting a meeting on written
remonstrances for October 17. Again, it only provided notice by
publication. When Allen learned of the upcoming meeting, he and 624
Broadway submitted written remonstrances.
624 Broadway unsuccessfully requested the Housing Authority

postpone the meeting so 624 Broadway’s appraiser could assess the
property. On October 16, it sued the Housing Authority and sought a
temporary restraining order preventing the meeting. The trial court
denied its request, and the Housing Authority proceeded to award
$75,000 in damages. One day after the meeting, the appraiser inspected
the property. He issued his report on October 28, valuing the property at
$325,000.
624 Broadway later amended its complaint and alleged, among other
things, that the Housing Authority’s decision to only provide notice by
publication violated its federal due process rights and deprived it of the
ability to adequately prepare for the hearings. Both parties moved for
summary judgment; the trial court granted it for the Housing Authority
and denied it for 624 Broadway. 624 Broadway appealed.
The Court of Appeals affirmed in part, reversed in part, and remanded.

Although it rejected most of 624 Broadway’s arguments, it found the
notice was constitutionally deficient because it “was not reasonably
calculated to reach Allen.” 624 Broadway, LLC v. Gary Hous. Auth., 181
N.E.3d 1013, 1024 (Ind. Ct. App. 2021). And this deficient notice was not
harmless error because it “contributed to 624 Broadway’s inability to
obtain its own appraisal of the property expediently, which in turn
contributed to 624 Broadway’s inability to present competing evidence of
its damages.” Id. at 1025. The panel remanded with instructions to enter
summary judgment for 624 Broadway and vacate the taking. Id.
The Housing Authority petitioned for transfer, which we granted.3 624
Broadway, LLC v. Gary Hous. Auth., 188 N.E.3d 842 (Ind. 2022).
Standard of Review
We review summary judgment decisions de novo, applying the same
standard as the trial court. Serv. Steel Warehouse Co., L.P. v. U.S. Steel Corp.,
182 N.E.3d 840, 842 (Ind. 2022). Summary judgment is appropriate 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 a judgment as
a matter of law.” Ind. Trial Rule 56(C). Constitutional claims are questions
of law, which we review de novo. See Larkin v. State, 173 N.E.3d 662, 667
(Ind. 2021).
Discussion and Decision

The federal Constitution establishes important limits on the
government’s ability to take private property for public use: It must
provide just compensation, a hearing on just compensation, and sufficient
notice. See U.S. CONST. amend. V; id. XIV, § 1; Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 313 (1950). The Housing Authority only
provided notice of the taking and its hearings by publication—even
though it knew how to provide personal notice. Its deficient notice
deprived 624 Broadway of a meaningful damages hearing.
3We address only 624 Broadway’s constitutional due process claim. We otherwise summarily
affirm the Court of Appeals. See Ind. Appellate Rule 58(A)(2).
I. The Housing Authority provided
constitutionally deficient notice to 624
Broadway, which was prejudicial.
The government can only take property through eminent domain if it
provides “just compensation” and “due process of law.” U.S. Const.
amend. V; id. XIV, § 1. This means “an owner whose property is taken for
public use must be given a hearing in determining just compensation.”
Walker v. City of Hutchinson, 352 U.S. 112, 115 (1956); see also Bragg v.
Weaver, 251 U.S. 57, 59 (1919) (“[I]t is essential to due process that the
mode of determining the compensation . . . afford the owner an
opportunity to be heard.”). Because “[t]he right to a hearing is
meaningless without notice,” the government must provide notice
“reasonably calculated to inform” a property owner of the proceeding.
Walker, 352 U.S. at 115; see also Mullane, 339 U.S. at 314.
Here, the Housing Authority complied with the governing statutes

when it provided notice by publication. See I.C. §§ 32-24-2-6(b), -8(c).
Statutory requirements, however, are not necessarily “constitutionally
sound.” Solarize Ind., Inc. v. S. Ind. Gas & Elec. Co., 182 N.E.3d 212, 221 (Ind.
2022) (Slaughter, J., concurring in part and in the judgment). “[N]otice . . .
that may technically comply with a state statute . . . does not necessarily
comport with due process.” In re Adoption of L.D., 938 N.E.2d 666, 669 (Ind.
2010). Certainly, a statute can provide more protection than the
Constitution. But when a statute provides less, the government must do
more. 4
Notice by publication may be sufficient “where it is not reasonably

possible or practicable to give more adequate warning,” like when the
intended recipient is missing. Mullane, 339 U.S. at 317. But it “is not
enough with respect to a person whose name and address are known or
4Contrary to what Hagemann v. City of Mount Vernon, 238 Ind. 613, 619–22, 154 N.E.2d 33, 36–
37 (1958), may convey, notice by publication at a proceeding’s outset is not adequate simply
because the legislature deems it so or because personal notice will be given later. See Schroeder
v. City of New York, 371 U.S. 208, 211–13 (1962).
very easily ascertainable and whose legally protected interests are directly
affected by the proceedings in question.” Schroeder v. City of New York, 371
U.S. 208, 212–13 (1962).
The Housing Authority admittedly knew the identity and address of

624 Broadway’s registered agent. Indeed, its September 19 damages
resolution included his address. 624 Broadway’s articles of organization,
filed with the Indiana Secretary of State, listed its registered agent, his
address, and an email address for service. Further, the Housing Authority
demonstrated its ability to successfully communicate with 624 Broadway
during its eminent domain lawsuit. See L.D., 938 N.E.2d at 671 (finding
notice by publication insufficient when a party “had successfully given
notice” in a previous case but “made no attempt to do so” in the instant
case). Yet once it transitioned to an administrative taking, it apparently
became incapable of sending a letter or email to 624 Broadway. An
administrative taking may be a “streamlined procedure for taking private
property,” Util. Ctr., Inc. v. City of Fort Wayne, 985 N.E.2d 731, 736 (Ind.
2013), but it cannot circumvent the Constitution. “[W]hen notice is a
person’s due, process which is a mere gesture is not due process.”
Mullane, 339 U.S. at 315. Because the Housing Authority knew how to
provide personal notice, its notice by publication was a “mere gesture.”
Despite the insufficient notice, 624 Broadway still learned of the

Housing Authority’s meetings, attended and spoke at them, and
submitted written remonstrances. But we cannot say 624 Broadway was
not prejudiced: under our harmless error standard, an error’s “probable
impact” is “sufficiently minor” if it did not “affect the substantial rights of
the parties.” Ind. Appellate Rule 66(A). The Housing Authority passed its
first resolution on August 15. More than three weeks later, Allen learned
of the September 19 meeting. Had the Housing Authority provided
constitutionally sufficient notice at the outset, it is probable that 624
Broadway would have presented its appraisal before or at the final
meeting. Instead, 624 Broadway’s appraiser issued his report less than two
weeks after that meeting. Ultimately, the Housing Authority must
persuade us that the probable impact of its deficient notice was so minor
that it did not affect 624 Broadway’s substantial rights. But given the
significant disparity between the owner’s $325,000 appraisal, the Housing
Authority’s $24,000 appraisal (which lacked an updated interior
inspection), and the final $75,000 award, we are not confident that 624
Broadway’s appraisal did not affect the Housing Authority’s decision on
just compensation. Thus, we decline to hold that the deficient notice was
harmless.
II. 624 Broadway is entitled to a damages hearing.

When the Court of Appeals reversed, it ordered vacatur of the taking.
624 Broadway, LLC, 181 N.E.3d at 1025. However, just compensation is
generally the appropriate remedy when the government, duly authorized
by law, takes property for a public purpose. Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 1016 (1984); Murray v. City of Lawrenceburg, 925 N.E.2d 728,
732 (Ind. 2010); cf. Dible v. City of Lafayette, 713 N.E.2d 269, 274 (Ind. 1999)
(acknowledging “injunctive relief may be necessary to remedy
interference with landowner rights for a private purpose”). A court cannot
enjoin or reverse a lawful taking when an adequate legal remedy—
compensation—is available. See Knick v. Township of Scott, 139 S. Ct. 2162,
2167–68 (2019); Murray, 925 N.E.2d at 732; United States v. Herring, 750 F.2d
669, 674 (8th Cir. 1984).
The General Assembly authorized the Housing Authority to conduct

administrative takings to provide affordable housing. See I.C. §§ 36-7-18-2,
-28(a)(2). Here, the Housing Authority strictly followed the statutory
procedures (to a fault in terms of notice) when it took 624 Broadway’s
property for community redevelopment that includes affordable
housing—plainly a public purpose. See Berman v. Parker, 348 U.S. 26, 33–36
(1954); I.C. § 36-7-18-2. And nothing indicates the taking was “subterfuge .
. . to convey private property to a private individual for private use” or
that the Housing Authority acted arbitrarily and capriciously. Derloshon v.
City of Fort Wayne Dep’t of Redevelopment, 250 Ind. 163, 170–71, 234 N.E.2d
269, 273 (1968). To the contrary, it became interested in the property in
2017, and by the time it took 624 Broadway’s property it had already
acquired other land necessary for its redevelopment.
We cannot vacate the Housing Authority’s taking—statutorily

authorized and for a public purpose—simply because insufficient notice
may have impacted the damages award. 624 Broadway’s sole remedy is
just compensation, and it is entitled to a hearing on damages where it can
present its appraisal and other pertinent evidence.
Conclusion
We reverse the trial court’s entry of summary judgment for the
Housing Authority on 624 Broadway’s due process claim. We remand for
it to enter summary judgment in favor of 624 Broadway on that claim and
hold a damages hearing.
Rush, C.J., and David, Slaughter, and Goff, JJ., concur.
ATTORNEYS FOR APPELLANT

Robert A. Welsh
Connor H. Nolan
Harris Welsh & Lukmann
Chesterton, Indiana
ATTORNEYS FOR APPELLEE

Tramel R. Raggs
Harris Law Firm, P.C.
Crown Point, Indiana
Jenny R. Buchheit
Thomas A. John
Sean T. Dewey
Ice Miller LLP
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE ANDERSON HOUSING
AUTHORITY, EAST CHICAGO HOUSING AUTHORITY, ELKHART
HOUSING AUTHORITY, INDIANAPOLIS HOUSING AGENCY,
JEFFERSONVILLE HOUSING AUTHORITY, LINTON HOUSI NG
AUTHORITY, SOUTH BEND HOUSING AUTHORITY, HOUSING
AUTHORITY OF THE CITY OF SULLIVAN, AND THE HOUSING
AND DEVELOPMENT LAW INSTITUTE
Eric J. McKeown
Alexandria H. Pittman
Ice Miller LLP
Indianapolis, Indiana

624 Broadway LLC v. Gary Housing Authority, No. 22S-CT-140 (Ind. Aug. 29, 2022)

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624 Broadway LLC v. Gary Housing Authority, No. 22S-CT-140 (Ind. Aug. 29, 2022)

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IN THE FILED

Indiana Supreme Court Aug 29 2022, 10:20 am

Supreme Court Case No. 22S-CT-140

624 Broadway, LLC,

Gary Housing Authority,

Argued: June 9, 2022 | Decided: August 29, 2022

Appeal from the Lake Superior Court

On Petition to Transfer from the Indiana Court of Appeals

Opinion by Justice Massa

The Gary Housing Authority acquired 624 Broadway, LLC’s property

Facts and Procedural History

On August 15, the Housing Authority adopted a resolution to acquire

624 Broadway unsuccessfully requested the Housing Authority

The Court of Appeals affirmed in part, reversed in part, and remanded.

Discussion and Decision

Here, the Housing Authority complied with the governing statutes

Notice by publication may be sufficient “where it is not reasonably

The Housing Authority admittedly knew the identity and address of

Despite the insufficient notice, 624 Broadway still learned of the

II. 624 Broadway is entitled to a damages hearing.

The General Assembly authorized the Housing Authority to conduct

We cannot vacate the Housing Authority’s taking—statutorily

Rush, C.J., and David, Slaughter, and Goff, JJ., concur.

ATTORNEYS FOR APPELLANT

ATTORNEYS FOR APPELLEE

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