National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

Challenging a Pipeline Reroute

Posted in Uncategorized

The Ohio coalition in opposing the present route of the Nexus pipeline has chosen the course of looking at the best alternative using industry standard software.

It will be up to FERC to decide whether the additional costs would be beneficial in order to avoid the more heavily populated areas. However, a serious consideration will be the engagement of environmental positive and negative effects created by each of the proposed routes.

“The proposal that we made used industry standard software — the same software that NEXUS is using — to manage our route,” Gierosky said. “Our goal is to minimize the conflict. The two things we were able to analyze were the conflict with structure, so you’ve got residences, churches, schools; and the other piece was wetlands, acres of wetlands.”

The new route would minimize residential and structure conflicts by 70 percent across all affected counties. In Lorain County alone, the reroute would cause a 50 percent decrease in structural conflicts and a 99 percent decrease of wetland and environmental conflicts.

The Best Way(and only) to Challenge Pipeline Construction in Eminent Domain Proceedings

Posted in National Eminent Domain



The Tennessee Gas Pipeline Company statement that there is an “impairment” of demand is something that was required to be provided to FERC.

Realistically, FERC is only to grant certificates of necessity when there is a necessity for a pipeline. If there is no demand, there is no necessity.

The question now is one of whether the public policy pushing for self-sustaining energy supply will supersede the lack of need for construction of profitable pipeline projects.

A CAVEAT:  if the statutory condemnation procedure is not followed for the jurisdiction (State), the acquisition may still fail.

“The public statement by the Tennessee Gas Pipeline Co. about demand “appears to be seriously overstated,” area opponents of the Northeast Energy Direct project told the Federal Energy Regulatory Commission last week.

Massachusetts Pipeline Action Network President Kathryn Eiseman, in a letter sent Wednesday to the Federal Energy Regulatory Commission, referred to a March 5 press release by Kinder Morgan, parent company of Tennessee Gas, announcing its contract with its three largest potential pipeline customers, for a total of 416,263 dekatherms of gas per day. “

Michigan Supreme Court Finding That Public Pension Plans Are Not A Property Right Has Important Relevance to Municipal Bankruptcy

Posted in Michigan Eminent Domain, National Eminent Domain

In the recent Michigan Supreme Court decision opposing the changes to the Michigan pension system for teachers, the Supreme Court has found that “just compensation” is not to apply.

This likely will mean that in the case of a future community bankruptcy in Michigan, the pension will not be a protected property right in Federal Court, as claimed by pensioners in the recent City of Detroit bankruptcy.

One can foresee the application of this case in other states, such as Illinois, which is underwater due to the community pension obligations.

Justice Stephen Markman, writing for the court, rejected unions leaders’ contention that the law unconstitutionally impaired employment contracts between workers and their school districts and resulted in private property being taken without just compensation.

The increased salary deductions are not mandatory, and the employees were given a choice, he said.



Ugh, Eminent Domain Alone Will Not Revive Detroit

Posted in Michigan Eminent Domain, National Eminent Domain


For twenty-six years, the City of Detroit utilized eminent domain as an economic development tool. John Mogk writes about the successes of GM Hamtramck and Chrysler Jefferson Avenue North as clear examples of the benefits of public acquisition of private property.

There seems to be a failure in the Crain’s opinion here on two counts. First, the projects were not always so beneficial, and only inflation and other failures of the City administration makes those projects “good” now. Second, people did get hurt despite studies prepared years after with an incomplete response from the then residents of the Poletown community. Finally, one only needs to look at what is going on in downtown Detroit now. Without eminent domain, redevelopment is occurring every day. Detroit’s downtown never had this rebirth during the whole period of this acquisition for private gain is how public policy did occur from 1978 through 2003.

Detroit does not have the ability to quickly assemble land in large enough tracts to support major projects. The last two auto plants built in the city — the GM Hamtramck and Chrysler Jefferson Avenue North assembly plants — each required more than 450 acres and the use of eminent domain to acquire their sites. However, the use of eminent domain for economic development is no longer available in Michigan. The state constitution was amended in 2006 to prohibit its use for economic development, no matter how beneficial the projects might be for alleviating unemployment, rebuilding the city’s economy and increasing the tax base.

While eminent domain can still be used to eliminate blight, the term is narrowly defined, requires a high level of proof and must be demonstrated separately on each parcel to be taken. Large development sites are required to be assembled by separately negotiating the purchase of hundreds and often thousands of parcels, making site preparation costly, time consuming and practically impossible. Moreover, interspersed properties that are not blighted and held by speculators or absentee landlords can stop any future project.

Michigan Landowners Follow Survey Challenge

Posted in Uncategorized

During the last week, this blog wrote of a West Virginia challenge to entry prior without payment.

 Now, apparently owners in Michigan are also challenging involuntary entry for surveying, testing and appraising. This may turn out to be an interesting challenge by the owners in Washtenaw, Livingston and Lenawee counties.

The company behind a planned natural gas pipeline that could run through Washtenaw County has sued several landowners to gain access to their property for surveys.

Rover Pipeline LLC recently filed 11 civil lawsuits against property owners in the county on in Washtenaw County Trial Court, online court records show.

John DeVries, a Grand Rapids-based attorney for Rover Pipeline, said 17 lawsuits were filed in Washtenaw, Lenawee and Livingston counties to try to force landowners to give surveyors access to property.



West Virginia Pipeline Sues Property Owners for Access

Posted in National Eminent Domain


Most jurisdictions allow entry for surveying and testing purposes. After all, one does not know what it is buying until it investigates the property. Yet, entry is an invasion of a property right. Compensation may be necessary.

Years ago, most would agree that pre-filing entry for surveying and investigations was simply necessary and part of the eminent domain process. Yet, pipeline and electric companies are profit-making institutions. Recently, the California Supreme Court has taken jurisdiction over whether entry may be made prior to payment or an offer of just compensation.

This is an area of eminent domain where the protection of property rights may dominate the private interest of utility companies. The cost will be simply an additional cost that utilities add on at a later date, but the costs involved are those which may very well be owed to the property owners.

BECKLEY – Mountain Valley Pipeline is suing 100 property owners for refusing property access to survey land for a proposed natural gas pipeline.

pipelineMVP is in the process of surveying properties as part of a project to construct a 300-mile, 42-inch natural gas pipeline through West Virginia, according to a complaint filed March 27 in the U.S. District Court for the Southern District of West Virginia.

MVP has contacted each of the defendants, requesting their consent to survey their property and each of either failed or refused to permit the company access to survey the properties and/or have prevented MVP from completing the necessary survey.


North Carolina and Corridor Protection Maps

Posted in National Eminent Domain


It is noted by lawyers who were successful in setting aside the “Map Act” of North Carolina, there is no provision of a guarantee of a cheaper acquisition without some type of payment.

If North Carolina wants to do it right, all it has to do is look at the Wisconsin statute, one which provides payment for an owner who desires to develop an area in the “map” of future planned right-of-way.

The North Carolina Map Act (“Map Act”) authorizes the North Carolina Department of Transportation (“NCDOT”) to file official roadway maps listing and mapping properties that are in the path of a proposed roadway in order to create a “protected corridor” for the roadway. The Map Act prohibits property owners in the protected corridor from obtaining building permits or subdividing their property.  If a property owner wants to try and develop affected property, the owner can submit to the agency that filed the corridor protection map an application for a building permit or subdivision or other development approval for property that is in the corridor and seek a variance from the restrictions of the Map Act.  If that request is denied, the agency has three years in which to either start condemnation proceedings to acquire the property or consent to the owner’s planned development.

The Map Act provides no timeframe for the development restrictions on property within the corridor to expire absent affirmative acts by an owner (e.g., by incurring expense to apply for a building permit), nor does it mandate any timeframe for the NCDOT to act to condemn the property or remove the protected corridor. The Map Act does not require payment of compensation for the restrictions placed upon an owner’s property.  Consequently, the NCDOT has always refused to pay just compensation for the harms resulting from the restrictions owners have had to endure when their land is within a protected corridor.

The purpose of the Map Act is to help the NCDOT control its future acquisition costs. If the NCDOT knows it is going to build a roadway through a particular area, it can file a corridor protection map and prohibit further development on the applicable property—development for which the NCDOT would later have to pay when calculating “just compensation.” But the restrictions associated with a protected corridor can last years or even decades.  All the while, property owners in the path of the corridor cannot develop or improve their land, and their property values suffer.

Is FERC Serious in Investigating Alternative Routes?

Posted in National Eminent Domain, Ohio Eminent Domain

FERC has ordered Nexus to “investigate” whether a route can be provided which will not go through the more densely populated areas such as Green, Ohio. However, the notion that it is to be “investigated” does not give solace if Nexus simply determines that the present route is the only appropriate route balancing the expenses and potential risks. One must wait to determine whether FERC will really move in a fashion that protects the individual property owners, something that certainly has not occurred to date.

The company has been looking at a possible southern alternative route of its own, although no details have been released.

The Federal Energy Regulatory Commission, which approves such pipeline projects, filed its directive to the company in a memo Tuesday — a day after Green pitched the alternative route in a 38-page filing with the agency.

When FERC will make its decision about what route it will approve has not been determined.

The Nexus pipeline — intended to move natural gas from the Utica Shale region to market — is generating a “large volume of public comments,” FERC said in its memo.

Green officials called the current 93.4-mile pipeline route through the Akron-Canton area “hastily drawn and ill-conceived with no respect to the human and environmental concerns.” Norton and Planning Director Wayne Wiethe signed the city’s filing.

Outstanding Appraiser Article

Posted in National Eminent Domain

Bill Rothman, an experienced Pennsylvania appraiser, provided an outstanding appraiser discussion about eminent domain. Mr. Rothman describes the process under which individuals deal with pipeline eminent domain actions in Pennsylvania. Reading this article offers an interesting outline of issues for individuals losing property to an acquiring agency. Mr. Rothman provided an interesting alternative offering of the eminent domain process to that provided by lawyers.

Because under Pennsylvania’s eminent domain law, a property’s value must be based on its “highest and best use” – a principle that became state law of the land following a lawsuit filed in 1958 by my parents, George and Dorothy Rothman.

At issue was Pennsylvania’s plan to straighten a section of Locust Lane – a project that would have taken part of the Lower Paxton Township cattle farm that had been in my family since the early 1940s.

When the state looked at the land – much of it where the Dauphin County Technical School now sits – the Commonwealth’s appraisers offered compensation based on its use as crop land.

Years before my father hired a surveyor and drew up a plot plan for a housing development; Locust Lane’s new path would have taken as many as 15 lots.

Posted in National Eminent Domain


Missoula may indeed have a right to acquire and control the privately owned water utility. But the simple argument that “this is owned by out of state people who will sell to other out of state people” does not properly deal with the issues of what is best for the community and what is allowed under the State and Federal Constitutions. The reality is that the notion that out of state ownership is dreadful cannot be the determining factor for Public Use. Rather, it is simply a question of what is Public Use given the circumstances.

As for rates, the City Attorney fails to mention the rates are regulated at the state Public Utility Commission!

But the city is trying to take ownership, through a legal process called eminent domain, by claiming that water is too important to the public good to leave in the hands of a company that simply wants to sell the utility for a profit.

128 other Montana cities own their own water utility. Missoula is the only major city in Montana that doesn’t own its own water.

Harry Schneider, lead attorney for the city, says the case isn’t about the right to own property, but rather, a city’s right to protect a crucial resource from out-of-state investors who just want to sell it to the highest bidder, “which in turn will influence the rates that’ll be charged to the people of Missoula who have no other choice but to purchase their water, Montana water.”