National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

John Mogk Provides Criticism of Kelo in Poletown

Posted in Michigan Eminent Domain, Uncategorized

Professor John Mogk of the Wayne State University Law School has provided another opinion to The Detroit News in which he claims that the article written by Jesse Hathaway regarding “Re-evaluating eminent domain” simply does not accurately reflect what is necessary for Detroit. Professor Mogk’s position is that economic development is necessary and the land assembly is not possible without eminent domain.

To the contrary, blight removal will create enough land for appropriate land assembly. If an area is blighted, even the houses in good condition may be taken in order to clear up the blight of the overall area.

In addition, Mr. Mogk contends that as along as there is “good” economic development, the private profiteers will not take advantage of the system. This sounds very much like what I used to hear in the early 1980′s, when the Economic Development Corporation Act provided for acquisition in order to allow economic development and benefit the tax base of a community as a whole. Rather than creating such economic development, the Economic Development Corporation Act resulted in a Cookie Jar for friends and relatives of elected officials to enjoy the special benefit of being able to acquire land at a deep discount, then receive special government financing, all in order to obtain fees for development. All too often the end result was a foreclosure four years later.

Professor Mogk is well intentioned. All of us want to see the City develop and improve. However the simple need of eminent domain is not so simple and will not be so safe for the economic well being of our community.


Whatever application Jesse Hathaway’s Jan. 8 article, “Re-evaluating eminent domain,” has to the rest of the country, it has none to a city, Detroit, that is desperately in need of economic development to alleviate unemployment and increase its tax base.

The use of eminent domain for economic development is not available in Detroit or anywhere else in Michigan. While the U.S. Constitution permits the use of eminent domain for economic development, Michigan’s Constitution was amended in 2006 to prohibit its use to take property from one private owner for the transfer to another to achieve economic development, no matter how beneficial the transfer might be for the public good in alleviating unemployment and increasing the tax base. That is not the good news.


Delray District Meets Future Plans

Posted in National Eminent Domain

Despite the grievances over the environmental issues in the Delray district, one should recognize that the City of Detroit has intended the area between the Detroit River and I-75 to be an industrial area since at least the passage of the major Master Plan in the early 1950′s.  The south (or perceived) east side of I-75 has always been contemplated to be totally industrial.  The question then is what happens on the west side of I-75 as the expressway traverses to the south?  That is a serious question which must be dealt with.

The Blade

Delray, which has shrunk from 23,000 residents decades ago to fewer than 3,000 today, is surrounded by the massive Marathon Petroleum Co. refinery, the Detroit Wastewater Treatment Plant, steel mills, coal-fired power plants, a former coking facility, salt mines, and other industries that locals claim have forced out neighborhood residents.

Considered one of Michigan’s most polluted neighborhoods, Delray also is caught in a contentious battle to save its land from eminent domain for a new U.S.-Canada bridge. The structure is expected to help modernize international transportation across the river, but push more people out.

Ms. Leonard could have moved, but didn’t — not even after the U.S. Secret Service showed up on her property one day, asking about photographs she’d taken of heavy industry in her neighborhood.

Posted in National Eminent Domain

By simply seeking to acquire a transfer station because a community does not like the use does not suffice to say that just compensation must be paid. That transfer station is a very special use and may end up being a very expensive purchase for the District of Columbia. Does this District really understand what is transpiring when a local Ward healer demands personal satisfaction by seeking the acquisition of a property not really creating harm and maintaining a valid use?

Ward 5 Councilmember Kenyan McDuffie is planning to introduce emergency legislation at tomorrow’s Council legislative meeting to authorize the use of eminent domain to seize property in Brentwood for city use. The site, on W Street NE, is home to a private trash transfer station that opened in 1988 and has riled Brentwood neighbors ever since.

Ward 5 is home to much of the city’s industrial land, some of which is used for city functions, like parking lots for garbage trucks and school buses, that have led residents to complain of being the city’s dumping ground. McDuffie has worked to convert his ward’s industrial land into more neighborhood-friendly uses, without sacrificing what little industrial space the city has left. In August, he and Mayor Vince Gray released a five-year strategy for handling the ward’s industrial spaces.




Posted in National Eminent Domain

In Hornell Township, Pennsylvania, a number of Burns Town members were elected, in part at least, on a slate that they would reverse the fracking moratorium.

Landowners have the opportunity to receive substantial payments when fracking is performed under their properties.  The question is one of whether that is a “taking” in a constitutional sense.  This is an issue balancing the rights of property ownership versus the police power allowed a local community to satisfy concerns over potentially unsafe conditions.

This issue will be a lawyer’s time bonanza because the call is close and may be distinct in different circumstances.

The letter, which will appear on Wednesday’s issue of The Evening Tribune, argues that New York State residents have missed out on money made from mineral rights ever since the state put fracking in a moratorium seven years ago.

“Landowners signed mineral leases with gas and oil companies,” The letter said. “They received anywhere from $1 to $25 per acre for the rights. These lease payments helped to defray the high cost of taxes. Once the moratorium was in place, the lease payments stopped.”

Those missing lease payments, the letter notes, could batter the bank accounts of municipalities if citizens decided to file lawsuits regarding mineral rights.

“The real possibility exists of lawsuits being field against towns and municipalities for the taking of these mineral rights,” the letter said. “Moreover, reimbursement to the landowners for the missed lease payments from the towns and municipalities would be part of the legal action. If one court decision favored the landowners in these cases, municipalities would experience monetary hardship.”

Along with the letter, Freiner sent The Evening Tribune an article from the Aug. 1, 2014 edition of The Wall Street Journal by Merrill Matthews, a resident scholar with the Institute for Policy Innovation in Dallas.

“The Fifth Amendment to the U.S. Constitution says, in part, that private property cannot be taken for public use ‘without just compensation,’” Matthews wrote. “Government regulations that substantially reduce the value of an owner’s property may also constitute a taking, according to the Supreme Court. For example, suppose a family buys expensive, beach front property, and the government later prohibits its development. This would reduce the value of the land. The owners may be entitled to compensation.”



Waldo Cancels A Virginia Visit

Posted in National Eminent Domain

Outstanding Virginia eminent domain attorney, Joe Waldo, cancelled a scheduled meeting over a planned pipeline to traverse Floyd County, Virginia. 

It is noteworthy that the decision to cancel the meeting was because the pipeline route might be moved.  This is an interesting factor given that Mr. Waldo and the owners face the changing plans of oil companies who seek to find a path of least resistance to its projects.  Potentially they find owners who bow to the pipeline company’s wishes.

Due to the pipeline route being moved out of Floyd County, the meeting with Waldo will probably be moved to another location more appropriate to affected landowners.

The decision to cancel the local meeting was based on attendance at the landowners meeting Thursday night at Floyd Country Store. Approximately 40 people filled an upstairs room at the Store, but several people attending were from Montgomery and Roanoke counties.

The Fateful End of Citizens District Councils?

Posted in National Eminent Domain

Citizens District Councils have been a basic part of almost every State’s blighted areas Rehabilitation Acts.  These Acts were initiated in the 1930′s and 1940′s to clear blight in major cities.  Michigan’s Act was enacted in 1945.

The whole notion of a Citizens District Council was one in which local community business people and residents were permitted to voice their feelings about a blight clearance project.  Frequently, our local governmental officials will take a position that unless the Citizens District Council supported a project, the project would not move forward.  At the same time, the elected officials’ desire to have a project created a Citizens District Council appointed by some local politicians so that the CDC would have individuals already in favor of the project.  The end result was that Citizens District Councils never provided the “grassroots” democratic action that was contemplated in the original enactment.

The councils are merely advisory, and staffed by volunteers–CDCs in Detroit haven’t received any public funding since the 1990s. They’re meant to empower citizens in designated “urban renewal zones” by providing them with a direct line to city government, and a voice in how local development progresses.

But last month—in one of his final acts as the city’s fully-empowered emergency manager–Kevyn Orr issued an order abolishing CDCs in Detroit.

CDCs “no longer align with the City’s urban renewal strategy, and, in some cases, present a barrier to the effective and efficient development of blighted areas of the City,” the order reads.

The move came as a surprise to many, and provoked mixed reactions from people involved in community-based development in Detroit.

American Transmission Company Moves Forward With Upper Peninsula Line

Posted in National Eminent Domain

In January, 2014, the Public Service Commission granted authority to the American Transmission Company to build a 138 kilovolt (Kv) overhead transmission line from Holmes Township in Menominee County to the Old Mead Substation in Delta County.

The line is intended to improve electric reliability in the Upper Peninsula.

This line will substantially affect a large number of properties from Escanaba through Menominee.  Major residences, lodges and business may be affected by the line itself.  Each case stands on its own proposition but American Transmission seems to be preparing an offer based upon the partial taking affect only.

The good faith offers have been provided to property owners in the last few weeks.  This will require owners to seek counsel.  Without a doubt, American Transmission will aggressively pursue early acquisition.

Spectra Energy Initiates Entry Process For Major Nexus Pipeline In Michigan

Posted in National Eminent Domain

Spectra Energy has sent out notices to a number of property owners requesting entry onto properties in order to investigate the soils and conduct testing for its Nexus pipeline project. 

While some say the entry is a trespass, the existing Michigan statutory framework does allow entry under certain given circumstances.  Realistically, Michigan has, to date, allowed entry before the condemnation authority has been granted.  Given there is a major California case being heard by the California Supreme Court on the question of whether an entry will be allowed prior to approval of a project, one may find the challenge occurring in Michigan in the near future.

Governor Speaks About Bridge Crossing On NPR

Posted in National Eminent Domain

The Governor provided a four-minute discussion with Craig Fahle of NPR about the bridge crossing.  The Governor stated that there has already been property acquired, probably meaning that the State of Michigan has obtained the City-owned foreclosed properties since all others are required to wait.

The reality is that without Federal engagement, the Bridge Plaza will fester and the community will be further damaged as has been the case for years.  This is not to blame the Governor, because it is not his decision to sit on funding.  At the same time, one has to wonder whether people who live in the neighborhood can reasonably survive in a neighborhood that has been subject to condemnation for the bridge since 2002 and other City projects for the 15 years prior to the announcement of the proposed bridge project.

Taking Beef To Slaughter With ET Rover

Posted in National Eminent Domain

There have been many angry articles about the ET Rover project.  This firm does represent property owners in the path of the Rover project, so we speak with biased breath.  The advice of outstanding Township lawyer, David Lattie, counsel for Atlas Township in Genesee County, Michigan, was for owners to obtain their own appraisals “early” in the process to be able to negotiate.  Realistically, this eminent domain proceeding may happen next month, but it is more likely to happen in two or three years.  Market demands will change dramatically.  Further, at this time there is no guarantee that Rover will pay the appraisal fee until such time as a serious negotiation occurs or a condemnation action is filed.  Given this, this firm is of the opinion that it is premature to obtain appraisals at this time.  There is nothing to negotiate at this early date, and who knows what is to be taken?  Perhaps there will be an oversupply of pipelines, negating the necessity for the Rover pipeline completely.

Grand Blanc View

“There is nothing we can do legally at this point except encourage people to speak out,” Lattie added. “It’s a daunting project and there is a lot of power behind their ability to create their line.” One resident asked, “Is it better to cooperate now or to fight every step of the way?”

Lattie indicated the measure of resistance will not factor into a property owner’s compensation but he recommended that in order to receive fair compensation, they might want to seek an appraisal early on—as that would make them “better armed” for any negotiations.

The township did pass two resolutions, one to oppose the project, and the other to re-route the pipeline in order to protect and preserve area wetlands and woodlands. The township has forms for residents to file regarding denying access. Residents also wanted to know how potential easements and other property changes would affect their tax bill to the township, and Kautman-Jones was unable to answer those questions as well.