National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

The Major Pipeline Being Built In West Virginia, Virginia and North Carolina

Posted in National Eminent Domain

A consortium of four major gas pipeline companies has arrived at an agreement in which one pipeline will traverse West Virginia, Virginia and North Carolina.  This pipeline is intended to move fracked gas from West Virginia to the southeast.

The pipeline will have major affects on land use.  One can fully expect that people like Joe Waldo, the outstanding Virginia lawyer, and eminent domain attorneys in North Carolina and Virginia will be kept busy with this pipeline.

Norvelle said 72 percent of landowners agreed to let Dominion survey their property for the line.

He added Dominion only uses eminent domain when they have to. Ninety-five percent of the time, Dominion does not use eminent domain, which would allow a utility to run through a person’s private property without their consent.

“If we need to get eminent domain, that’s way down the road,” Norvelle said.

Gov. Earl Ray Tomblin stated in a press release that he appreciates Dominion’s continued investment in the region and looks forward to capitalizing on the state’s abundant supply of natural gas.

“We continue to be optimistic about the existing and future opportunities this industry brings to the Mountain State, and today’s announcement by Dominion has the potential to create good-paying jobs for our hard-working men and women,” Tomblin said. “West Virginia is proud to continue its legacy as an energy-producing state and help create energy independence for our country.”

Virginia and North Carolina governors also voiced support for the project Tuesday.

Norvelle said three compressor stations will be built for the pipeline: one in West Virginia near the start of the pipeline; one in central Virginia in Buckingham County; and one to be determined later near the Virginia-North Carolina border.

The pipeline will flow southeast from Harrison County through Virginia with an extension to Chesapeake, Virginia, and then south through central North Carolina to Robeson County.

The four companies have 20-year contracts to be consumers of the pipeline. PSNG Energy also plans to have a 20-year consumer contract.

Why Did ET Rover Move From Oakland County to Genesee and Lapeer Counties?

Posted in National Eminent Domain

There are literally hundreds of property owners in Lapeer and Genesee Counties who are asking why Rover is suddenly appearing in their County after Rover originally planned to route its new pipeline adjacent to the existing Enbridge line 6B in Oakland County, Michigan.

The answer is somewhat convoluted.  First, property owners outraged by the treatment by Enbridge were organized and refused to allow one more pipeline to carve their properties.  These individuals are in many cases burdened with multiple utility easements already.  Almost each has multiple Enbridge pipelines.  The new line was installed in the last year and one-half and a second line requiring replacement for 20 years which Enbridge continued to operate until it failed and spilled one million gallons in Marshall, Michigan.  Led by a property owner who was required to deal with Enbridge, Jeffrey Axt, the targeted owners organized into a group called POLAR, Protect Our Land And Rights.  Mr. Axt did an outstanding job of organizing the group to oppose the originally planned route.  However, of equal import was the help of Commissioner Michael Spisz and Commissioner Robert (Bob) Hoffman of the Oakland County Board of Commissioners.  No one is more hostile to an eminent domain project than an individual burned by a utility in the past.  Well, Commissioner Hoffman, an outstanding advocate for his constituents, suffered the humiliation of having Consumers carve up a substantial part of his property well outside of a granted 60 foot easement to replace an existing and aging gas pipeline on his own property.  Having been abused by the eminent domain process by a utility company, Bob Hoffman was well aware of the plight facing the citizens of Oakland County.  Commissioner Hoffman and Commissioner Spisz were wise in protecting the interest of the citizens in their respective districts.  They should be commended for their effort and congratulated for a rare success against a national utility seeking authority from the Federal Energy Regulatory Commission (FERC).

Rover Notice to Michigan Residents

Whiteman Air Force Base Challengers Take A Risky Route

Posted in National Eminent Domain

The Federal Government has acquired about 430 acres around the Whiteman Air Force Base in Missouri.

Apparently the owners believe that they may seek a challenge to the condemnation activity via a jury trial.  The owners are in for a rude awakening.  The only issue which will be determined by the federal court is fair market value.  Hopefully, the four owners will determine how to handle this situation correctly and properly proceed to protect their opportunity to receive just compensation.  However, should the owners take the foolish route of challenging the condemnation, they should at least look at the Federal Rules of Civil Procedure before thinking a jury trial will be obtained on the issue.

The Daily Star Journal Online

The government took title to the properties Aug. 11, the chief of asset management for the 509th Civil Engineering Squadron at Whiteman, M. Joe Joyner, said.

The government bought 647 acres, or 60 percent, of the total land sought, he said. Whiteman began negotiations more than a year ago with 16 owners of 24 parcels totaling 1,077 acres.

Four landowners seek a jury trial to keep the land.

“Regardless of litigation, the money can be given to them at any time should they want it,” Joyner said.

Remaining parcels have a fair market value of $1.86 million, he said.

“That was based on appraisals,” he said.

Joyner said the government now owns the disputed property.

“Possession is another matter. The government does not have to have possession of something to own it,” he said.

Maine Property Owner And Recent Sales

Posted in National Eminent Domain

A Maine property owner has received an offer for double what he paid for a property only three years ago.  However, when looking at the change in the market demand for waterfront usage, one should recognize that these changes are so dramatic and immediate.  Original purchase prices of only a few years before may no longer be relevant.

Portland Press Herald

The Maine Department of Transportation has paid a Portland businessman $7.2 million for 18 acres of industrial waterfront land it seized from him this spring, more than double what the businessman paid for the same land just two years ago, according to tax records and information obtained by the Portland Press Herald through a Freedom of Access request.

But the businessman, Phineas Sprague Jr., has given the state notice that he will likely challenge the value, a process that could lead to years of litigation.

While the land has been neglected and unused for decades, it’s now in high demand because of the unexpected arrival of an Icelandic shipping service last year at the adjacent container terminal.

The decision by the Eimskip shipping line in March 2013 to make Portland its only port of call in the United States has spurred the state to expand the terminal, which has struggled for years to build a reliable container service.

The project’s first phase, expected to start next month, is an $18 million project to create room for a new “wheel yard” so trucks can drop off and pick up containers. The state will also extend the terminal westward to a railroad line, allowing longshoremen, for the first time, to unload shipping containers from vessels and put them on trains in the same terminal.

The “Threat of Terrorism” Defense To Providing Property Owner List

Posted in National Eminent Domain

Federal statutes now provide that, in certain circumstances, the potential property owner list of those owners who may be condemned cannot be released.  The claim is that the procedure protects utility companies from the “threat of terrorism”.  This is probably an unrealistic approach because any terrorist organization will be able to find the route in any event.  However, the reality of this “threat of terrorism” is to keep property owners from communicating with one another in order to fight projects such as the Pacific Connector Pipeline route.

Aside from the obvious one about exactly why it’s in our national interest for a Canadian developer to make massive profits selling U.S. gas to China, a more practical question has arisen concerning the Jordan Cove project. Developers are denying property owners along the route the ability to contact each other. Property owners’ requests for the names of others along the route have been denied, because of “the threat of terrorism.” A moments thought makes it clear that a 100-foot wide scar on the landscape extending for 230 miles across nearly the entire state of Oregon is not going to be difficult for bad guys to locate.

There must be another reason why the developers don’t want the property owners facing eminent domain claims to contact one another. Could it be the insultingly low prices ($300/acre) being offered for destructive easements and the prospect of having massive amounts of explosive gas running under their property? Let’s hear from Jordan Cove. Why is it preventing property owners along the pipeline whose land it plans to seize from contacting each other?

Rover Pipeline Moves Forward In Michigan

Posted in Uncategorized

The Rover pipeline land agents are moving forward seeking entry onto properties for survey purposes. 

Michigan law provides that surveys may be conducted prior to the filing of a condemnation complaint or even the receipt of project approval by the Federal Energy Regulatory Commission or the Michigan Public Service Commission.

The issue as to entry is the just compensation to be paid.  If trees are removed, thereby damaging the property, the pipeline company is obligated to pay for the losses incurred.  However, the notion of treble damages will probably not apply because the pipeline trespass is not for the benefit of timber production.  At the same time, one should expect the pipeline company to verify, in writing, that it will attempt to mitigate any damage and will pay for any losses.

The Rover Pipeline still requires Federal Energy Regulatory Commission approval.  Apparently the pipeline has moved from Oakland County to the north in order to avoid the more urbanized areas.  The route follows what was called “Enbridge Line 6B” but veers off course in order to avoid a number of environmental impediments.

Patience and courtesy to Rover, despite one’s frustration with the project, is an imperative for all.  The pipeline does nothing for Michigan residents.  The whole notion that this pipeline provides energy production and is helping America is probably hogwash.  At the same time, if the Federal government through the Federal Energy Regulatory Commission deems the pipeline needed, one can well expect this project to move forward next year.

Very few properties will likely be taken by the pipeline.  There will be damages (sometimes substantial) in many instances.  Rover will understand that it is duty bound by Michigan law to provide an appraisal and a good faith written offer premised upon the appraisal.  One can expect that Rover Pipeline will perform in an appropriate fashion, or Rover Pipeline will face the difficult consequences of a challenge.

Please refer to the “What We Do” page of the nationaleminentdomain E-Mail address for additional owner information.

ET Rover Changes Route

Posted in National Eminent Domain

Originally, the ET Rover route was to follow and parallel the Enbridge 6B Line.

The route has now changed in order to avoid an eminent domain proceeding in Oakland County.  Rather, the route will be to the north, traversing Lapeer and Sanilac Counties before entering St. Clair County.

Clarkston News

It appears ET Rover isn’t coming over.

Based on maps posted last week on the Federal Energy Regulatory Commission (FERC) website, there’s a new proposed route for the interstate ET Rover natural gas pipeline and it no longer includes Oxford, Addison and Brandon townships.

Instead, the new route goes north through Lapeer County toward I-69 (see map above).

“Oakland County has been bypassed from the route, except for two or three parcels in Groveland Township,” said Jeff Axt, president of Protecting Our Land and Rights (POLAR), a local property rights group that’s been fighting to push the pipeline out of the county.

“I think it’s mostly because Oakland County had really good arguments (against it).”

POLAR hosted an Aug. 27 landowners meeting at the Oxford Veterans Memorial Civic Center. Approximately 40 people attended including residents of Oxford, Addison, Hadley and Brandon townships.

Does The No Duty to Negotiate With Mortgagee Make Sense?

Posted in National Eminent Domain

The New Jersey Supreme Court recently entered a ruling in which it no longer requires the condemning authority to negotiate with mortgagees.  Clearly, this is not the rule in most jurisdictions given that most jurisdictions deem the mortgagee a party in interest and property owner.  One should recognize that the statutory delegation differs in each State.

This ruling is so bothersome because many mortgage agreements provide that the attorney fees for the lender will be borne by the borrower.  This process does not provide a favorable result for owners, although at least it provides the owner the opportunity at the owner’s sole discretion to make a mess of the case.  Such is eminent domain in New Jersey.

New Jersey Law Journal

In a unanimous ruling in Merchantville v. Malik & Son, the court said New Jersey’s Eminent Domain Act, N.J.S.A. 20:3-1 to -47, states unambiguously that a condemning authority is only obligated to negotiate with the property’s title holder.

“The act does not recognize real parties in interest or those with more interest or concern about the state of the property than the title holder of record,” Appellate Division Judge Mary Cuff, who is currently temporarily assigned to the Supreme Court, wrote. “This limitation to the title holder of record is consistent with generally recognized and applied principles throughout the country.”

Dealing With ODOT

Posted in National Eminent Domain

Under Ohio law, ODOT is not required to pay or consider the assessed value of a property.  Each State has its own rules on the admissibility of appraisals and valuations for tax purposes.  ODOT’s determination is one of fair market value.  Frequently fair market value is more than the assessed value, but there are those times when people have to pay the government based on a much higher value than what is finally contained in the offer received.

Sandusky Register

But what about the Huron County Auditor’s office total estimated value of Logan’s property — nearly $30,000 more?

“We’re not permitted to use that as a value,” Stacy said.

ODOT hires its own contracted appraisers to determine a “fair market value” for properties it acquires.

ODOT appraisers use three different approaches to determine this value: a market, cost, and income generator approach.

Barrett said lawyers who see eminent domain cases with blatantly unfair treatment will often take them on knowing they’ll be paid after they win.

But Senate Bill 7 wasn’t passed soon enough for Logan, who said she accepted what ODOT gave her because she didn’t have the money for a legal battle.

Stacy said his department’s eminent domain powers come from not only state law, but from the Fifth Amendment of the U.S. Constitution.

Stacy said eminent domain powers are very rarely used by his department, partly because state eminent domain laws are so strict.

“Each modification of the Ohio laws have made Ohio laws more restrictive than federal laws to the betterment of Ohio property owners,” he said.

The Mahaska County, Iowa, Approval Of Wind Turbines Offers The Highs And Lows Of Wind Development

Posted in National Eminent Domain

First, the community was foolish enough to think it was required to grant tax abatement in order to retain wind developers.  The tax income derived from these turbines would be a basic support for agricultural communities during the “down times” that are bound to occur.

The company cannot acquire easement area by eminent domain.  This allows for the market to determine what is to be paid for the installation of turbines.

The proposed wind farm project in Mahaska County is moving forward. On Monday morning, the Mahaska County Board of Supervisors unanimously passed a tax abatement ordinance for the proposed project by RPM Access.

RPM Access is a developer from De Soto, Iowa that constructs wind farms. The tax abatement reduces taxes for the project. And that was necessary for the project to continue moving forward. The board also unanimously waived the second and third readings of the ordinance.

“I’m certainly in favor of the ordinance,” says Mahaska County Supervisor Mike Vander Molen.

RPM Access does not have any eminent domain powers. So the project requires all landowners agreeing to lease their land to the company. RPM Access Project Developer Jim Dimond says the financial compensation the landowners would receive is much greater than the value of their land.

“I think we’re getting good reception with the landowners, and we’re proceeding with the idea that construction would occur in 2015 or 2016,” Dimond says. “All the wind farms that have been developed in counties around the state have adopted this same ordinance.”