National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

Do Toll Roads Have Priority Over Railroads?

Posted in Uncategorized


Canadian Pacific Railroad is taking on the privately owned Illinois Tollway. Because of the changes in the interchange system, the authority now seeks to acquire, by eminent domain, major portions of a Canadian Pacific Chicago rail hub.

Traffic in the Chicago area is all important. At the same time, priority and respect should be provided to an important federally regulated transportation operation such as this railway yard.

If done right, Canadian Pacific will be victorious. The Tollway system would be wise to find another replacement now, prior to completion of the lengthy and potentially unsuccessful approval process.

The project has been designed a “Project of National and Regional Significance” by federal transportation legislation, the Tollway said.

Canadian Pacific’s beef has arisen out of the Tollway’s plans for the north-south connector route between the Jane Addams Memorial Tollway (I-90) and the Tri-State Tollway (I-294.) Under the plans posted on the Tollway’s website, the portion of the proposed new roadway running south from Irving Park Road to the Tri-State would include a new interchange at the new highway’s junction with Franklin Avenue/Green Street in Bensenville.

And that route would not only take the new highway right through Canadian Pacific’s Chicago rail hub, but plant the new interchange right at the southern end of the more than 300-acre rail yard, the railroad said.

Why Repair the Ambassador Bridge?

Posted in Michigan Eminent Domain, National Eminent Domain, Ohio Eminent Domain


Jack Lessenberry suggests that the eminent domain will take care of the Ambassador Bridge safety issues. Realistically, the government of the United States or Canada should be allowed to properly determine whether there are safety issues with the existing Ambassador Bridge. Just as realistically, Mr. Moroun desires to build a new bridge as a “replacement” and then repair the old bridge.

Clearly the existing Ambassador Bridge will need repair and replacement. “Age hurts!” These are not Roman aqueducts made of concrete but rather metal objects which may rust and deteriorate. One would suspect when there is certainty that the new Gordie Howe Bridge will be built, Mr. Moroun may receive his request to build a second (replacement) bridge. It will be interesting to see if he does when he has competition on bridge traffic for the first time. One thing is clear; the construction of the Gordie Howe Bridge will change truck traffic patterns so dramatically that the profitability of the Ambassador Bridge may be somewhat or severely diminished.

DETROIT — Think about this radical idea: The United States and Canada should invoke eminent domain and force Ambassador Bridge owner Manuel Moroun to sell the structure, which links Detroit with Windsor, Ont., to both governments.

That’s not a plea for Soviet-style socialism. Most capitalist nations around the world would think it was crazy ever to have allowed one man to own an international border crossing, let alone one he claims neither nation has a right to regulate or inspect.

The Ambassador Bridge is the most economically important trade crossing in North America, with more than $130 billion in freight, mainly heavy manufacturing components, moving across it each year. Were the Moroun family composed of good citizens, this bizarre arrangement might be overlooked.


Can an Ohio City Acquire Property Outside the City Limits by Eminent Domain?

Posted in Uncategorized

Perrysburg, Ohio is acquiring property in Middleton Township in order to “improve” Fort Meigs Road. Two issues are involved. First, the acquisition is for more than simply roadway, but also walkways, which was not specifically included into the road delegation of the statute. The question then becomes one of whether the road statute is intended to be for “transportation purposes,” meaning more than simply roads can be acquired.

A second issue raised in the Ohio article is the acquisition of property outside the city limits. Under almost every State Constitution, property outside city limits can be acquired if there is a Constitutional provision or State statute delegating a governmental body the power to acquire property outside the community limits. See Grosse Ile v. Grosse Ile Bridge Company, 722 NW2d 220 (2006).

First, Perrysburg lacks authority to seize property in Middleton Township. But even if it did because it’s a road project, it can’t take land for sidewalks. Further, Perrysburg has no authority to use the quick-take process in Middleton Township, and, regardless, quick-take doesn’t apply to sidewalks — either inside or outside the city limits.

“They can’t take land in the township for any reason,” Thompson said, “but particularly for amenities like a sidewalk and bike path,” citing several court cases in which quick-takes for drainage ditches and sewer lines were ruled illegal.

This week, the court granted a temporary order saying the city couldn’t take immediate possession of the properties or begin construction until certain other issues are determined.

But the land grab isn’t the only issue.

Homeowners wonder why the widening project is limited to their side of the street; the other side contains a man-made drainage ditch and farm land.

Todd Grayson, the lone Perrysburg City Council member to vote against the eminent domain proceedings, said it boils down to cost.

“There’s no debate about whether or not the road needs to be widened,” he said. “The question is: Do you pay a million dollars more to expand on the ditch/farm field side or do you go to the property owners’ side and expand on their property?”


Issues of Immediate Eminent Domain Seizure Without Appraisals in Ohio

Posted in Ohio Eminent Domain

Does Ohio provide the “quick take” provisions of the Ohio eminent domain statutory framework with the ability to acquire property with no real offer being made? At this time, the governmental agency can simply acquire by filing any estimate and proceeding to a condemnation.

Most jurisdictions require an offer of not less than an appraised value prior to the acquisition of property. Generally this is followed by the Uniform Relocation and Assistance Act. In other words, if there is federal funding, the state is first to obtain an appraisal and make an offer of not less than the appraised value.

On the local level, the Uniform Relocation Act is not always required to be followed. Given this, many jurisdictions acquire without any estimate of the amount of compensation, effecting itself of a pre-judgment garnishment.   This blogger wrote about the constitutionality of the quick take almost twenty years ago in the University of Detroit Journal of Urban Law, concluding that a good faith effort premised on reasonable analysis of Just Compensation was enough to comply with the Constitutional mandate.


“And I disagree,” Grayson said. “When your justification is ‘it’s cheaper,’ that’s not a legal reason for taking people’s property.”

ODOT’s only role, says Mike Gramza, ODOT District 2 administrator, is to make sure all federal requirements are followed; 80 percent of the funding is from the federal government. Perrysburg is handling all design work and paying the 20 percent local match.



Virginia Waldo Firm Challenges Survey Rights

Posted in Uncategorized

The outstanding Virginia law firm of Waldo & Lyle had a number of attorneys actively objecting to the Atlantic Coast Pipeline Project.

Attorney Josh Baker raised the issue of the Virginia Constitution being “supreme law.” Realistically, this blogger would disagree with the notion that the Virginia law supersedes the Constitutional right delegated through the Interstate Commerce Clause to the Federal Energy Regulatory Commission. Yet, this raises the second issue of what rights belong to the utility, if any, until FERC approval is provided. On the flip side, it is unlikely that FERC approval would be provided unless there is certainty as to the future route of the line.

Jeremy Hopkins, another Waldo & Lyle lawyer, raises a different, but even more perplexing issue. The utility should not have an unfettered right to enter property at a time and place of its own choosing. Rather, adequate notice is a basic part of the Constitutional process. If anything, the Police Power would maintain that notice must be given in order to protect the general safety of the public.

Norfolk attorney Josh Baker told Ricketts that a 2012 amendment to the Virginia Constitution voted on by Virginia residents made private property ownership a “fundamental” right. He also argued that a state law passed in 2004 that gives natural gas companies the right to enter property does not hold up under a strict scrutiny test. The 2004 law does provide that natural gas companies can enter property without permission once they have notified the property owner in writing and specified the date of the visit. Baker argued that the law is unconstitutional

Baker said a compelling government intent must be established, and as of yet, there has been no federal permit granted for the Atlantic Coast Pipeline project, adding that the Virginia Constitution “is the supreme law.”

Jeremy Hopkins, another Norfolk attorney representing property owners, said the letter sent to the landowners speaks of a date surveyors would come, but also speaks of other potential visits to the property. He said property owners need to be aware of when someone is coming on their land. Hopkins said the notice is necessary because property owners could be operating heavy equipment and doing other tasks.


An Outstanding Tax Consequences of Condemnation Primer

Posted in Uncategorized


Katherine Contreras of the Nossaman eminent domain firm in California has provided an up-to-date analysis of the tax effects created by condemnation gain or loss.

The Nossaman firm is an extremely active owner’s side eminent domain firm.

The refresher provided by Ms. Contreras offers an outstanding initial analysis. One should still meet with a tax advisor for the specific situation, but this article offers an outstanding analysis which will be generally applicable.

“Most of us are at least vaguely familiar with the tax on gains from the sale of property.  Many of us know that when property is sold voluntarily and the funds re-invested, the gain may be deferred under Internal Revenue Code section 1031.  What is sometimes overlooked is the taxability of gains when property is sold involuntarily, i.e., condemned.  As we posted several years ago, Internal Revenue Code section 1033 contemplates just such a situation, and provides some advantages over a section 1031 exchange: An owner has more time to re-invest and may actually hold the proceeds pending that investment – no intermediary needed.  (Unlike some other Code provisions, sections 1031 and 1033 do not eliminate gain; rather, they defer gain by allowing the taxpayer to move “built-in” gain from an old property to a new property.)


The Trouble in Hiring Young Appraisers for Eminent Domain

Posted in Uncategorized


Eminent domain has changed in the past fifteen years. There is far more emphasis on “business side” valuation in the process of property interest appraisal.

At the same time, real estate appraising remains the crux of the valuation process in most eminent domain cases. In the attached article in the Lehigh Valley Business, writer Joe Ferry arrived at a clear understanding of the issue at hand.

The process of appraising now requires a clear and concise writing. As such, an educational minimum must be fulfilled in order to prepare a reasonable appraisal premised upon an appropriate analysis. These educational requirements are substantial enough that the writing prerequisite makes it difficult for many to seek out appraisal positions even if otherwise qualified in preparing a quantitative analysis. At the same time, the quantitative analysis is also required to properly provide an appraisal.

Exacerbating the situation is that there is a 2500 hour apprenticeship required in order to obtain the most minimum of licenses and years of classes to move up to the senior appraisal categories.

Given this, there is now a lack of qualified young candidates seeking matriculation and growth in the appraisal area. If this reader were to ask almost any eminent domain attorney in any state what is the biggest problem in the eminent domain process, the person is likely to be told that the most difficult part is finding new appraisers. There simply are very few new appraiser candidates entering the litigation field.

Many of the young appraisers now apprentice at the larger wholesale appraisal houses. The real question is whether these young workers will break off as they obtain their licenses or simply walk away from the profession entirely.

“While veterans are abandoning the industry, an even bigger problem is the lack of newcomers. Not only are educational requirements now more rigorous, new appraisers also must serve at least 2,500 hours as an apprentice. That means it can take years before someone can do an appraisal on his own, if he can find an appraiser willing to let him be an understudy.

And starting next year, appraisers will be required to undergo mandatory background checks.

Geiger said the decline in new residential-real estate appraisers will have other effects. In the past, mortgage appraisal work was the training ground for bigger and better things such as legal work in tax assessment and eminent domain, he said.

“We’re not creating that training ground for people anymore,” he said.”


Outstanding Eminent Domain Attorney Among Those Considered for Georgia Court of Appeals

Posted in Uncategorized

Charles L. Ruffin, another outstanding eminent domain lawyer and member of the Owners’ Counsel of America, a group established to protect private property rights, is now in contention for one of the three available Georgia Court of Appeals judicial seats. Mr. Ruffin is an outstanding lawyer and a credit to the profession. He will add respect to the Court should he be appointed!

Macon attorney Charles L. Ruffin remains in contention for one of the three available seats on the Georgia Court of Appeals.

Ruffin, a past president of the 45,000-member State Bar of Georgia, is the only Middle Georgia attorney among the 11 finalist for the three seats.

More than 100 lawyers applied for the slots after the General Assembly expanded the appeals court from 12 to 15 members. The Judicial Nominating Commission reduced the list to 11 after the last round of interviews earlier this week.”

Virginia Federal Judge Follows What May Be The Majority Rule for Surveys

Posted in Uncategorized

The issue of the right to survey a property prior to any attempt to acquire with provision for payment of just compensation is an issue now before the California Supreme Court. A number of other jurisdictions have allowed for entries without compensation beforehand in those specific circumstances where a state statute makes a provision for entry with limited rights of entry and premised upon the need to know what is to be acquired.

The Federal Judge Elizabeth K. Dillon at the Federal Court in Charlottesville provided a thirty-five page Opinion finding the entry appropriate without compensation. The owners were better suited to file in the Virginia state court system!


Jim Norvelle, director of communications for Dominion, said the company has always believed the Virginia law is consistent with the U.S. Constitution and allows surveys with proper notification and landowner protections. Dillon’s ruling affirmed Dominion’s belief and actions, he said.

“ACP has followed the procedure as laid out in the Virginia law to survey the best route with the least environmental impact. The Virginia law allows survey only as necessary to meet regulatory requirements,” he said. “The ACP is needed to deliver abundant and low-cost natural gas to generate electricity, heat homes and businesses and spur economic development. It will create thousands of jobs and millions of tax revenue for the communities along its route.”

Neal Walters, attorney for the five Nelson landowners, said he and his clients disagree with and are disappointed by the court’s decision.

“FERC has indicated that the surveys Dominion seeks to perform are not a required part of the application process and the court’s decision thus stands for the proposition that purely as a matter of business convenience a private, for profit, company can send multiple people across the private yards of Virginia residents, clearing paths as needed and digging holes, over the objection of the landowners and without any need to compensate the landowners for the intrusion,” he said. “This ruling substantially undercuts the concept of private property as Virginians have understood it.”

Charlotte Rea, one of the Nelson landowners who filed the lawsuit, said surveys should not be allowed for projects where public need has not been established. She said she is still discussing further options with Walters.”

TransCanada Makes a Positive Move

Posted in National Eminent Domain

The TransCanada pipeline has been the fight of the decade in the eminent domain arena. Some Nebraska residents and environmentalists have been central opponents to this project premised upon the Oligala Acquifer and the environmental damage created by oil.

Without taking a position in this, this blog senses that TransCanada recognizes that it can only obtain the approval upon FERC approval and, in this specific situation, some type of local approval. Appropriately, owners challenged TransCanada’s right to acquire by eminent domain without appropriate approvals. Well, TransCanada now has recognized that Nebraska Public Service Commission approval would make the issue moot.

This state application process probably should have been initiated ab initio, a Latin legal term meaning “from the beginning” if I understand those few Latin terms correctly.