Another Proposed Condemnation Fails

Posted on May 15, 2013 by Alan Ackerman

The most certain way for an acquiring agency to fail on its condemnation in its eminent domain proceeding is to not follow a statute. The delegating procedure itself must be followed, but even if followed, a grant of the right to condemn by a body with authority is required in the jurisdiction where the condemnation occurs. A utility forgot to obtain the approval of the Pennsylvania Utility Commission. Failure in the condemnation followed!

http://pennrecord.com/news/10056-commonwealth-court-panel-reverses-trial-court-in-eminent-domain-case-involving-ppl-electric

The utility filed its eminent domain action in late January 2011, and WMPI filed preliminary objections in mid-February of that year, arguing that PPL did not comply with certain procedural requirements in cases of condemnation.

Specifically, WMPI maintained that PPL failed to seek approval from the Pennsylvania Public Utility Commission prior to moving forward with its declaration of taking.

WMPI argued that this lack of approval nullified the utility’s eminent domain action.

In depositions, PPL officials had testified that the utility didn’t need PUC approval because the existing facilities on WMPI’s land are distribution facilities, that PPL did not seek PUC approval to move or construct distribution lines, and that the utility had no present plans for the construction of new facilities, the record shows

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Foreign Company Takes Whuppin in Bridgeport

Posted on May 15, 2013 by Alan Ackerman

 

Bridgeport is still enjoying the benefits of the Kelo decision and is seeking to benefit a prime developer by purchasing a nearby piece of property for assemblage.

The market is the market. Sometimes, a property has value simply because of its size and it is part of a necessary assemblage. Here, we have a developer who has plenty of land, but needs more in order to make a project work. A foreign manufacturing and energy company, Invensys, is stuck in the jaws of an acquisitive government.

http://www.stamfordadvocate.com/local/article/Port-Authority-to-take-land-by-eminent-domain-4503974.php

That plan fell apart in 2003, shortly before the Comanche project was canceled.

Since then, DiNardo said he's had a hard time marketing the 92,000-square-foot office building Sikorsky was supposed to occupy.

"I have an office building with no parking," he said.

In the past, DiNardo said he has tried to purchase the property from the owner, a British company called Invensys Inc., and even got them to agree to clean up and cap the site before he bought it.

However, Invensys, a major energy and manufacturing company, backed down once it realized the land was worth half the clean up cost, DiNardo said. A call to the company's Foxboro, Mass., office was not returned.

The land is so important to the redevelopment of his sites, though, that DiNardo said he is willing to pay to clean up or cap any contaminated land himself.

"We need the land," he said. "If we don't get it, I'm going to have to knock the office building down."

"We will spend the money to make the project work out," he added, noting that a warehouse or manufacturing space creates far fewer jobs than a barely used office building.



Read more: http://www.stamfordadvocate.com/local/article/Port-Authority-to-take-land-by-eminent-domain-4503974.php#ixzz2TPtvuD75

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A Turnpike in Maine?

Posted on May 15, 2013 by Alan Ackerman

 

http://freepressonline.com/main.asp?SectionID=50&SubSectionID=72&ArticleID=25680

The previous Legislature appropriated $300,000 to conduct a feasibility study on whether to build a 220-mile private toll highway through central Maine, from Calais to Coburn Gore. Proponents, led by construction company Cianbro's chairman, Peter Vigue, have argued that the $2 billion plan would create jobs and improve the local economy. Critics question the economics of the project and worry that the plan would damage the environment and natural wildlife habitats. Residents in the area also worry that their land could be seized by eminent domain to make way for the road, which Vigue has repeatedly said won't happen.

Last August, after a backlash from voters in his district, Sen. Doug Thomas, the bill's sponsor, lobbied Governor LePage to slow down the study until eminent domain concerns could be addressed. Debate over the plan has been extremely bitter, and Vigue has been traveling with bodyguards, while Sen. Thomas says he went out to get a concealed handgun permit after receiving threats and dead fish were left around his home in Ripley.

The Maine legislature is having a difficult time in pushing forward for a 220 mile private toll highway.

An east/west turnpike would help development in the State and create jobs. It is unlikely Federal funds would be available for this type of development. On the other hand, the eminent domain and anti-development sentiment raise substantial issues on the likely success of the proposal.

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Balancing Coal Against Existing Jobs

Posted on May 9, 2013 by Alan Ackerman

 

Coal excavation offers a great chance to make a lot of money for affected ranch owners. However, construction of the railways through the coal areas will severely diminish the value of many farm and ranch operations. Cutting properties in half will create a far different economic unit than what existed prior to the proposed acquisitions.

While one recognizes the needs to be balanced, one should also recognize that the history and economic structure in the area is premised upon successful ranching. Simply paying just compensation realistically may not be enough.

http://mtstandard.com/business/ranchers-line-up-against-coal-railway/article_f490b39a-b457-11e2-8592-001a4bcf887a.html

They could probably go on undisturbed for 100 years more if the earth under the pastures weren’t laced with coal. A consortium led by BNSF Railway Co. wants to build a rail line to carry some of that coal to market. Nine miles of it would run through the McRae ranch.

The McRaes and some of their neighbors say the Tongue River Railroad, and a proposed coal mine at Otter Creek, puts southeast Montana and ranchers like them at risk for an energy plan that mainly benefits Asia.

“It’s going to cross our land, wreak havoc with our water, go through our towns,” Clint McRae said recently, sitting in the rustic wood house his father built, its hearth hewn from local stone.

The Montana ranchers are in the minority. For many others, coal has been one of the few good things to come out of a region so barren it sent many early homesteaders fleeing to greener lands farther west.

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Congressman Goodlatte Mistakenly Prefers Federal Controls

Posted on May 7, 2013 by Alan Ackerman

Representative, Bob Goodlatte, a Congressman from the Sixth District of Georgia, concludes that Kelo v. City of New London took away property rights from owners.

The real question is did it allow property rights to be controlled by the State? The Supreme Court did not prohibit State action to limit eminent domain proceedings, rather it limited the Federal Court from taking jurisdiction over individual State’s police power determinations.

While we complain about Kelo, we must recognize that the basic concept to federalism survived only because of opinions such as Kelo and Federal Eminent Domain.

 

 

In Barron v. Baltimore, Justice Marshall concluded that the first eight amendments of the Constitution, commonly called the first eight Bill of Rights, binds the Federal government only.  The States controlled their own Rights.

If one were to truly look at this closely, one would think the Federal government cannot control State police powers, i.e., eminent domain.  If so each state has the right to make the decision on its own.

http://augustafreepress.com/bob-goodlatte-protecting-private-property-rights/

The Supreme Court’s 5-4 decision in Kelo v. City of New London was a step in the opposite direction.  This controversial ruling expanded the ability of State and local governments to exercise eminent domain powers to seize property under the guise of economic development when the public use is as incidental as generating tax revenues or creating jobs.  In the wake of this decision, State and local governments can use eminent domain powers to take the property of any individual for nearly any reason.

For these reasons, it is important that Congress finally act. This week, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing on the Private Property Rights Protection Act.  I was honored to welcome Susette Kelo as a witness at this hearing and appreciate her courage in taking her case all the way to the Supreme Court and helping to highlight the plight that many property owners face.

No one should have to live in fear of the government snatching up their home, farm, or business, and the Private Property Rights Protection Act will help to create incentives to ensure that these abuses do not occur in the future. Our constitutional rights as Americans must be steadfastly guarded.

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Fair Market Value Can Change With a Different Highest and Best Use

Posted on May 5, 2013 by Alan Ackerman

Fair market value can change. Simply because the City valued a lot at $16 Million Dollars and simply because an Owner bought it 3 years earlier for almost the same amount does not necessarily mean that is the value of the property.

The best thing an Appraiser can do is to be as fair minded and make his own determination on what he thinks the value is, and verify it should he chose, with a purchase price but within the last 3 years. However, purchase prices can exceed or be far less than their true fair market value of a piece of property. The City’s simple reliance on a purchase price in Nashville, Tennessee was a very, very big mistake.

http://www.tennessean.com/article/20130502/BUSINESS01/305020062/Music-City-Center-dealt-big-blow-ruling

The Tennessee Court of Appeals affirmed on Tuesdaya lower court’s decision that Metro vastly underpaid for a key piece of property the city took from a private developer to build the 1-million-square-foot building south of Broadway.

The court-ordered higher price puts Music City Center about $16 million over its original $57 million land budget.

A Nashville jury ruled in 2011 that a 5.66-acre parking lot owned by Tower Investments was worth $30.4 million, which was more than double the $14.8 million Metro offered. Tower Investments purchased the property in January 2007 for about $14.6 million.

City officials have expressed dismay at the thought of a parking lot increasing in value by nearly $20 million in nearly three years.

But Tower’s key argument was that it had deep experience developing property, and it would have built a mixed-use project there that would have earned them much more.

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Case Led to Important Changes in Judicial Assignment System

Posted on May 5, 2013 by Alan Ackerman

 

 

The Tower Condemnation in Nashville was first discussed in this blog 2 years ago. A system in which one judge handles all the eminent domains actions is something that occurs in many jurisdictions. The true problem, all too often, is the individual handling the eminent domain has an "oar" in the water. In the Tennessee case, the oar was a very big one given the judge was related to a member of the law firm representing the community.

The one thing litigants desire is fairness. Being a good buddy with the judge or related to a judge simply skews the system in an unfair and truly unconstitutional manner.

 

http://www.tennessean.com/article/20130502/BUSINESS01/305020062/Music-City-Center-dealt-big-blow-ruling

Case led to changes

The legal battle took many twists and turns and resulted in a change in how the local courts handle eminent domain cases.

At one point it seemed like Tower had a losing hand. A jury of view, which is a special panel of real estate experts, initially ruled that the property was worth $16.5 million. And Circuit Judge Barbara Haynes, now retired, upheld that decision.

But Tower argued that Haynes was conflicted because her daughter was a partner at Miller & Martin, the local law firm hired to represent Metro. Tower also took issue with a decades-old courthouse practice of assigning all Metro eminent domain cases to the Third Circuit Court, even though eminent domain cases involving other government agencies were randomly assigned.

Presiding Judge Joe Binkley eliminated the practice of automatically sending cases to the Third Circuit, and Haynes did ultimately recuse herself. When she did, the case was randomly assigned to Binkley’s court, where a local jury ruled in 2011 that fair market value for the land was $30.4 million.

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Colorado Fight for Eminent Domain Delegation to Oil Pipelines Continues

Posted on May 5, 2013 by Alan Ackerman

 

Colorado oil delegation fight continues by simply changing one comma in a statute to allegedly "rectify" a mistake, property rights have given rise to a serious debate in Colorado. How much delegation is there to be given to oil and gas companies? Clearly, the delegation was not there before. Despite the initial support for the expansion of eminent domain, oil and gas companies may now see the kick back by the community.

http://www.journal-advocate.com/sterling-local_news/ci_23131113/battle-comma-comes-halt

In the House, Senate Bill 13-191 picked up another sponsor this month: Rep. Jerry Sonnenberg (R-Sterling). Sterling and co-sponsor Rep. Angela Williams (D-Denver) told the transportation committee that the bill was just a technical correction to a long-ago statute, and would put back into law common practice of allowing oil pipeline companies the rights of eminent domain.

The bill has continued to pick up opposition during its three-month long trip through the General Assembly. The first was from the plaintiffs in a Colorado Supreme Court decision that SB 191 was designed to overturn. Then it was representatives of irrigation ditch companies in northeastern Colorado that feared the oil companies would run roughshod over their ability to decide when and where ditch crossings would take place. Thursday, major opposition surfaced from Colorado Counties, Inc. (CCI), which represents the state's county commissioners. According to Weld County Commissioner Barbara Kirkmeyer, who testified on their behalf, the bill would grant oil companies eminent domain rights, and "that's what we're afraid of."

 

 

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Canton, Ohio Newspaper Article Discusses Condemnation Issues

Posted on April 29, 2013 by Alan Ackerman

In a report on the Bill of Rights, the CantonRep.com covered what has occurred in eminent domain proceedings in the Canton area.

The article begins with the balanced thought that sometimes there is a public use and property needs to be taken. However, the issue of just compensation is one in which the article describes many circumstances in which the offers clearly were simply too low.

 

http://www.cantonrep.com/news/x91992345/Bill-of-Rights-Part-5-Eminent-domain-a-tool-for-economy

You can fight progress — though you probably will lose.

Of all protections provided within the wide-ranging Fifth Amendment, the most controversial piece may be its final 12 words: “nor shall private property be taken for public use, without just compensation.”  

Obviously, founding fathers recognized situations when the government should be permitted to forcefully buy private property. Over the years, the U.S. Supreme Court has been asked to define the breadth and depth of those powers.

Clearly, governments can use eminent domain (forceful purchase) authority to acquire land to make way for such tangible projects as highways or easements for utilities. But what if a city’s leaders want to buy homes and buildings because they’re deemed “slums?” Or, perhaps to clear a path for a private developer to build something new?

Can a government do that?

In short, the answer is “yes.”

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Failure of Maryland Town To Follow Statute Creates Dismissal

Posted on April 27, 2013 by Alan Ackerman

 

 

As so often cited in this blog, State statutes requiring pre conditions, such as appraisals or written offers for negotiation will and must be strictly followed. Otherwise, the agency’s attempt to acquire will be dismissed by the Court.

http://articles.courant.com/2013-04-23/community/hc-middletown-eminent-domain-0424-20130423_1_property-owners-eminent-domain-parking   

 A Superior Court judge has blocked the city's attempt to take a portion of a property on Clinton Avenue by eminent domain to use it as part of the Kings Avenue parking project.

In a decision issued April 17, Judge Edward Domnarski said the city failed to share two independent appraisals with the property owners, and therefore did not strictly comply with eminent domain procedures as set by the state legislature in 2007.

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The Next Division In The Boulder Community

Posted on April 26, 2013 by Alan Ackerman

This blog has frequently written about the intention of the Boulder City Council to acquire the Xcel electric utility servicing the community.

In its most recent foray into the acquisition, the City Council assigned its City Manager the authority to select a committee to determine the feasibility and monitor the progress of the project. How foolish. All the City Council is doing is setting its City Manager up to either choose individuals who would be favorable to the City Council’s position or we may find the City Manager out of a job.

Realistically, the City Council must figure out a way to try to make the process as neutral as possible. We admire its confidence in the City Manager, and admire more the City Manager’s willingness to take on the responsibility. However, do not be shocked if there is a new City Manager in Boulder, Colorado if the appointed committee arrives at a determination not acceptable to the City Council.   

http://www.dailycamera.com/energy/ci_23049442/boulder-enters-next-phase-municipalization

As required by the charter, the city will hire an independent consultant to review its earlier analysis, which found that Boulder could get more than half its energy from renewable resources, mostly wind power, at rates similar to or lower than Xcel Energy's.

That consultant will be hired by City Manager Jane Brautigam rather than by city staffers who have been working on the Energy Future project to ensure neutrality, Brautigam said.

At the same time, city officials will be further refining their modeling, including soliciting prices from potential wind providers and incorporating information from a new resource plan recently filed by Xcel at the Public Utilities Commission, which shows greater increases in coal prices than Boulder had originally modeled.

Boulder officials also will be working on an appraisal of Xcel's distribution system in preparation for possible condemnation proceedings against the utility and trying to get clarification from federal regulators about whether Boulder is likely to owe stranded costs to Xcel.

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Golf Course Condemnations

Posted on April 26, 2013 by Alan Ackerman

Airports often utilize eminent domain to expand onto nearby properties. As such, one needs to look at what properties are located nearby. Frequently the properties are zoned for industrial uses. Such industrial uses do not have serious concerns with the noise issue. Many other communities place their recreational uses near airports for the same reason. These recreational uses are golf courses or other open space uses awaiting development.

In acquiring areas to expand, airports misunderstand that the recreational use may at some point be converted to a different use; be it industrial or some other use which does not readily fit into the residential/commercial type of environment.

http://www.registerstar.com/news/article_d288e72a-abcb-11e2-82d1-0019bb2963f4.html     

Watz told supervisors on the Economic Development Committee of the Board of Supervisors Monday that eminent domain would be the next step for the county to acquire the property. He said a public hearing would be needed.

Columbia County Economic Development Commissioner Ken Flood has said the county needs the land to comply with FAA regulations regarding a safety zone for landing and takeoffs. That could include a new fenced in safety zone and the removal of more than 130 trees. Two ponds would be filled in as well. Watz said the trees “are a public safety issue.”

The 90 acre navigation easement would cover most of the 96 acre golf course, and place height restrictions on any development there — while leaving ownership to CN Production Management Enterprises LLC, Watz said. In an interview last month, the ownership group’s principal owner Carmen Nero, said the county’s offer was too low and that he would need more money to relocate two holes of the golf course that would be impacted by the county’s acquisition.

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Creating Balance in Wyoming

Posted on April 24, 2013 by Alan Ackerman

 

The Wyoming Legislature, recognizing the harshness of the eminent domain remedy and the oppressive strength of the oil and gas industry in the State, has provided a partial fix by legislatively attempting to protect owner rights. How this legislation will work in the long run is open to question. But in the short run, owners will have protections that did not previously exist.

http://www.wyomingnews.com/articles/2013/04/22/news/01top_04-22-13.txt 

CHEYENNE -- Landowner advocates and the oil and gas industry remain at odds over a coming state law that adds protections for property owners during eminent domain cases.

The Legislature approved Senate File 118 during the past session.

The legislation places the burden of proof on developers or government entities to show why their request to use eminent domain to claim someone else's property is justified. Failing that, it allows a judge to dismiss a condemnation case without prejudice.

It also forces the group seeking to condemn property to pay landowners’ legal fees if a judge determines it did not offer them a fair value for the property.

The new law has the potential to impact pipeline or other energy projects in the state. But there remains much disagreement over who stands to benefit or lose once it takes effect on July 1.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said the change should be a win-win for property owners and industries or other entities that rely on eminent domain to move forward on infrastructure projects.

 

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Expense Versus Business Versus Environment Makes Route Difficult

Posted on April 24, 2013 by Alan Ackerman

Reading the Duluth News Tribune article about a proposed Highway 53 reroute explains the serious problems in choosing new locations for roads. Balancing the additional expense of a project against the environmental impacts and against the economic impacts makes route choice difficult under the best of circumstances.

http://www.duluthnewstribune.com/event/article/id/264698/group/Business/  

The option of rerouting U.S. Highway 53 through the middle of Cliffs Natural Resources’ Thunderbird mine in Eveleth-Virginia is still on the state’s list of options, even though the company still is saying no way.

Local businesses, state and federal lawmakers and even the Minnesota Department of Transportation lean toward that route because it is the most direct, least expensive and doesn’t bypass any businesses. But Cliffs said last month that the through-mine route simply isn’t workable. And, despite claims by some local officials to the contrary, Sandy Karnowski, Cliffs spokeswoman in Minnesota, said the company has not changed its stand.

“We still do not support that reroute for many different reasons,” Karnowski told the News Tribune on Thursday. “Nothing has changed for us.”

She said Cliffs opposes the through-mine route because of safety and operational concerns and because the new road might cover up valuable ore. Moreover, the route faces federal air-quality regulations enforced by the Environmental Protection Agency for dust.

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Eminent Domain Wins A Race In Australia

Posted on April 24, 2013 by Alan Ackerman

It is too difficult for this blogger not to write about a horse named Eminent Domain, overcoming great illnesses, to win an important race at the Randwick Harness Racetrack in Australia. On the same day, please note that Black Caviar retired!

http://wwos.ninemsn.com.au/article.aspx?id=8645803  

Two years ago Eminent Domain was struck down by illness and spent six weeks at a veterinary clinic.

Williams was told to prepare for the worst.

"They were going to give the horse 24 hours and if he didn't show improvement they were going to put him down," Williams said.

"I actually took a bag of our own wheat and hay to the horse. I drove from Goulburn to Camden with it and the horse ate it.

"He has come a long way."

Eminent Domain lost half his stomach due to the illness and has also had his career interrupted by a fractured splint bone, not to mention the various niggles so often afflicting racehorses.

But none of that was evident at Randwick as he swept down the outside to claim the TAB.com.au Sprint (1200m).

Williams said it was a big thrill to win a race on Doncaster day and was happy the four-year-old had finally lived up to his expectations.

"I've put my reputation on the line a few times with this horse and he's let me down but he's had a lot of bad luck," Williams said.

Eminent Domain ($14) had a length to spare over Upshot ($9) with Potions ($17) another long head back third.

 
 
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