New Albany violated public access law three times on Mount Tabor Road requests

Property owners along the road that is undergoing the city's restoration project said they weren't able to get information in enough time to present educated counter-offers to buyers through the process of eminent domain.

Now, the city has filed condemnation against their properties. When the purchase price is negotiated in court, these residents worry they won't have the facts needed to back their cases, and are unsure what the city's final plans for the project entail.

"We can't do a true business agreement without knowing what we're getting into," said resident Kelly Feiock, who lives on the corner of Mount Tabor Road and Klerner Lane.

Feiock is one of three property owners along the corridor who have filed complaints with the Indiana Public Access Counselor's office. In some cases, though not all, the office ruled the city violated the law. One other property owner has not submitted formal complaints but has indicated the city didn't follow public access law in response to his request.

"I think they could do a better job," Indiana Public Access Counselor Luke Britt said. "I don't know the circumstances, either. Are they getting 20 different requests and they let one or two slip?"

City Attorney Shane Gibson in an email statement said he doesn't believe New Albany has been secretive.

"The city has provided hundreds of copies and documents to various individuals requesting information on the Mount Tabor Road project," Gibson said.

New Albany City Councilman Scott Blair, whose district encompasses most of the project, said he doesn't think the city is intentionally withholding information — but he does think it's the city's responsibility to do better in fulfilling requests in a timely manner.

"I think it's just a matter of our city administration having the resources and the manpower to be able to provide all that information," Blair said.

He added that he will likely propose budgeting an additional employee dedicated to public relations.

"It's important that we're transparent and we provide information," Blair said. "It's also another level of service, and we have to staff for it, and we have to be able to fund this position."

In some of the public access counselor's rulings of the complaints, he noted that a few of the residents' requests were too broad. Public access law states a city can deny a request if it isn't specific enough — though the city is still required to deny the request within a certain timeframe.

Colin Receveur, who owns an apartment complex on Mount Tabor Road, requested several documents about his property from the past 47 years. Britt, the public access counselor, said records requests can't be "a fishing expedition."

"I didn't think the request was proper in the first place, but even if it's an improper request, the city is still obligated to acknowledge in writing and deny in writing, which they didn't do," Britt said.

For hand-delivered requests, Indiana law gives the city 24 hours to either deny the request or respond that they received it in writing. Receveur submitted his request Jan. 31. It wasn't acknowledged until Feb. 13. He has since received several documents, though he said it's not the information he requested.

"This kind of surprised me, to get effectively completely stonewalled by the city," he said.

Requests by residents Kelly Feiock and Scott Whalen were also not acknowledged in the timeframe required by state law.

Indiana's public access law doesn't offer much recourse for violations. Oftentimes an official violation declared by the public access counselor is enough to motivate governments to comply. But if that doesn't happen, the next course of action is to sue.

"It's like everybody out here is trying to get an answer, and the city won't talk to you," said Dennis Feiock, Kelly's father who lives down the street. "You go to the state and the state says, "City, give them the information' — and we still won't get the information."

Some of Dennis Feiock's requests to the city were for reports that don't exist, such as a stormwater study on the effects of the project. Britt stated in one advisory opinion that the city isn't responsible for producing documents that don't exist.

Still, residents are left with questions on the nature of the project and its final product.

The Mount Tabor Road Restoration and Pedestrian Safety project will result in more than a mile of new roadway and sidewalks on both sides between Charlestown Road and Grant Line Road. Over the years, the road has cracked and shifted along with the eroding slopes on which it's built.

The city's website states the intersection of Mount Tabor Road and Klerner Lane will become a four-way signalized intersection.

But Feiock said the appraiser assigned to her based his offer on plans that include a four-way stop, with no signal. Representatives with the Indiana Department of Transportation told Feiock and her mother the city plans to replace the the stop signs with a signal. Residents say the city has never confirmed to them what the final plans entail.

The difference between the two plans, she argues, could make a difference in damages she receives in the city's settlement.

A signalized intersection would require a turning lane. Though the city won't be taking more land if that's the case, a 15-foot-buffer between the sidewalk and property lines would be used for traffic.

"The main issue is we are afforded one opportunity to evaluate the purchase offer and make a counteroffer prior to the city starting the condemnation process," Whalen stated in an email. "Those decisions and requests can only be based on the plans available at that time."

Gibson stated the project itself doesn't affect appraisals — just the amount of land that is taken.

"With respect to factoring signals vs. stop into appraisals, the footprint of the plans for the four-way stop and signalized intersection are the same, meaning that the same amount of right-a-way and easements are needed for either," he said.

He said the city plans to add a signal at the intersection, as the website indicates.