National Eminent Domain Blog : Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan and Washington, DC

    When the City Council lawyer files a case against the City Council, people really get upset.  The question is “whether the City Council lawyer is acting as a lawyer for the city in all affairs?”  Does this abridge his rights to represent owners against agencies of the city?  Does information he received at the City Council meetings interfere with his activities?  Does he know what happens at closed sessions?  How divided are his activities?
    It is always a problem to handle cases against the community that you work for.  This is why so many eminent domain lawyers specializing in representation of owners fear representing governmental or utility acquisition agencies.  Unbiased valuation is such a vital aspect of proper client representation that any bias leaves one in fear of hurting other clients in the condemnation setting.

The Times Tribune

Any lawyer who works for a municipal government represents the taxpayers. It doesn't make any difference which agency or branch of the government the lawyer serves; the public and its tax-funded treasury are the common denominators.

So it should be pretty clear to Scranton City Council's lawyer, Boyd Hughes, that he has a choice to make.

Mr. Hughes recently filed a lawsuit against the city government and the Scranton Sewer Authority in behalf of Olde Good Things. The company contends that action by the city in the wake of a 2007 fire further damaged its property, while the city government contends that it's not at fault.

Mr. Hughes also has represented other parties against the city government, including in one active eminent domain case against the Scranton Redevelopment Authority.

City residents have the right to expect that the lawyers in their government's employ will work for that government rather than against it.

Mr. Hughes should decide whether he wishes to work for or against the city government's interests because he can't represent both. No lawyer should be in a position of suing a government while advising that government on policy decisions.

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The Texas Eastern Transmission Company has notified residents and businesses in Arkansas that their pipeline representative is about to seek acquisition of their property.  This is being done prior to approval of the environmental assessment by FERC.  Licensing has not been granted.  The utilities are pushing their projects without environmental assessments in order to acquire as much land as possible, thereby signifying the importance and risk they have taken in the project.  You can only hope that the owners understand the seriousness of the easement they are granting.

In many areas along the Texas Eastern project, there is an already existing pipeline, which makes the environmental assessment application easier, but also makes the project potentially less safe.

tradingmarkets.com

If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition
of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, the pipeline company could initiate condemnation proceedings where compensation would be determined in accordance with state law.

A fact sheet prepared by the FERC entitled "An Interstate Natural Gas Facility On My Land? What Do I Need To Know?" is available for viewing on the FERC Web site (http://www.ferc.gov). This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings.     

 

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Craig Shields, Editor of 2GreenEnergy.com maintains a different outlook on the power transmission system.  The owners often worry about the harm to the personalized, farming or business operations.  

Mr. Shields insight is probably consistent with the majority in the country, although certainly not those facing the task of retaining a lawyer and fighting a condemnation proceeding. The real question is “By the time you are done with the geothermal, wind and sun, will the environmental costs and fees be as great as what we are using now?”  Without doubt, Mr. Shields would state the answer is “no”.  Others might respond differently.

renewableenergyworld.com

But let's look at the transmission issue on a national or continental scale. I know there are tons of smart people – including Bill McKibben and thousands of other authors – who look to individuals as the solution to the energy problem.  McKibben, for example, sees a future in which there is a "farmers’ market" of energy, where everyone is his own utility, putting his unused electrons back onto the grid.

While it’s hard to disagree with this, there is most definitely a matter of scale. With our growing population of energy-hungry consumers, utility-scale renewables appears to me to be the only way to get this done. Yet renewable resources are localized: the sun shines hottest in the southwestern deserts, the wind blows hardest in the plains, the mountains have the best geothermal resources, etc. And this is where the transmission issue comes in.

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    The property owners in Nebraska face an aggressive acquisition utility in Keystone.  The questions raised by the linked article from the Lincoln Journal Star are multiple.
    First, should Keystone start acquiring “within thirty days”, prior to obtaining permission from the Federal Energy Regulatory Commission and any other necessary licensing authorities?
    Second, does Keystone understand the effect it may have on the environment in Nebraska?
    Third, do the owners understand they should not expect a million dollars unless there is a million dollars worth of damages?  Just compensation is not a gift but a constitutional right premised upon fairness.
    These issues will play out in an area which has not faced a large number of eminent domain proceedings.  Fortunately, for these property owners, they have a reasonably fair judicial process and outstanding condemnation lawyers in the area such as William Blake in Lincoln, to help them through the fight.

Journalstar.com

"It's gone beyond that," she said of the proximity of family property to the pipeline TransCanada wants to bury from Keya Paha County on through the York area to Jefferson County and beyond. "It's not just that it's in my pasture."

Nonetheless, pipeline matters take on greater urgency for the Condons and others who got letters from TransCanada about July 21. That's because the 30-day timetable cited in the letter before land condemnation proceedings begin is about to expire.

"While we hope to acquire this property through negotiation," said the certified letter sent to Shirley Condon, "if we are unable to do so, we will be forced to invoke the power of eminent domain and will initiate condemnation proceedings against this property promptly after the expiration of this one-month period."

As steadfast pipeline proponents and opponents know so well, Keystone XL is the $7 billion follow-up to the initial Keystone line that began carrying oil shale southward from the tar sands of Alberta this year.

Keystone XL is not a done deal. Among the key hurdles yet to be cleared are approval of the environmental impact statement and issuing of the federal permit TransCanada needs from the U.S. State Department.

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    Ron Kamzelski wrote a letter to the Editor of the Wellsboro Pennsylvania Gazette explaining his anger about eminent domain acquisition to require forced pooling.
    The underlying problem remains one of how you value a lease.  While Mr. Kamzelski recognizes there are leases for $1 an acre, there are also leases worth $5,000 per acre.  What will happen over the coming years is the acquiring parties will simply state that they want to hold at their lowest number, try to have people buy at the lowest number and then try to establish that lowest number as the value in future acquisitions.
    It is a long treacherous downhill ride for property owners facing the pooling problem.    

Wellsboro Gazette

Meanwhile your bought and paid for politicians propose that gas companies can pool your assets without your consent for way less compensation than could be achieved by free market negotiation. Maybe forced pooling made little difference for shallow gas wells when leases were only $1 an acre, but now that they are over $5,000 an acre for some Marcellus Shale leases, forced pooling clearly benefits only the gas companies. What company would bother to lease your land if they knew they get your gas without a lease and why would they pay you more than the minimum 12.5 percent royalty?

Now pipeline developers want the right of eminent domain for gathering systems. Eminent domain has long been a mainstay of interstate gas transmission pipelines but not gathering lines. All the thousands of wells planned for our area are going to be connected to a main transmission line. If the shortest route for their gathering line is through your property, that’s where they want it to go with or without your permission.

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In a Northern Nevada Business Weekly article, local elected officials attacked the notion that mining is of “paramount interest”, allowing private corporations to exercise the right of eminent domain.

The rule of law is one in which a statutory provision, so long as it is in the State constitutional parameters, will be upheld as valid. The legislators have a right in considering changing the statute in order to avoid the opportunity for mining companies to simply come in and acquire property.  Yet, one has to wonder whether the State constitution used unregulated activities, even of “paramount interest” as activities which may allow for the use of eminent domain.  Clearly, our society seems to be bent on opposing regulations.  Yet, when it comes to the use of the power of eminent domain by private entities, regulation may be the only protection!

Northern Nevada Business Weekly

While a subsequent court hearing before Elko District Court Judge Andrew Puccinelli resulted in a settlement agreement between the two parties, several Nevada officials voiced surprise that a little-known provision in the 1875 law governing mining companies was used. Among them were Assemblywoman Sheila Leslie and former state archivist Guy Rocha, who was quoted as saying, “Why this law is still on the books is questionable.”

Leslie, a Democrat from Reno who is running for the State Senate, said she will introduce legislation in the next session to eliminate the provision that says mining is of “paramount interest” to the state and therefore the power of eminent domain may be used by private mining company.

Several people familiar with the case suggested Fronteer likely used the antiquated provision of the 1875 mining law to reboot negotiations. One was Alan Coyner, administrator of the Nevada Division of Minerals. “The eminent domain portion of that law has probably outlived its usefulness,” he says. “I don’t think too many mining companies would disagree with her (Sheila Leslie) on that.”

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In the El Paso Inc. article, the Texas Tech Foster School of Medicine is seeking some unfair sum as just compensation.  The article concludes that buying a few “slivers” has raised the price of our project.

The article does not recognize that the law firm of Adler and Barron, specializing in eminent domain throughout Texas and based in Austin, is simply seeking to have the City follow the law and pay just compensation for what is taken.  The effect on the remainder is a consideration which must be made.  Apparently, El Paso never thought about that.  If the author of the article had closely reviewed the situation, it might have been found that just compensation and fairness was at issue and appropriately raised by the Medical School.

El Paso Inc.

On Tuesday during executive session, City Council will hear an update on the situation. The issue also is posted on the regular agenda as an action item, meaning council members may vote.

According to backup information for Tuesday’s agenda item, the project’s cost has increased from $580,000 in 2006, to $830,000 in 2008, with the federal government paying 80 percent.

Of the total tab, land acquisition was estimated at $200,000 in 2006, and $449,000 in 2008.

In March, the City Council voted 7-1, with city Rep. Eddie Holguin opposed, to acquire the land.

But the UT System doesn’t agree on the land price, and 5100 El Paso Drive LLC will not give up its lease.

That group has engaged Adler and Barron, an Austin law firm that specializes in eminent domain cases that’s become active in El Paso.

The firm also represents property owners in the proposed Americas interchange project in Far East El Paso, at Interstate 10 and Loop 375.

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The Skyland Center, premised upon substantial government intervention will finally occur.  However, the markets and demands for commercial are not necessarily what they used to be. Further, the interference with the rights of the owners and small businessmen in the shopping center has been negatively affected by the taking for years.  The government cannot look at this project as a “success” with the great harm performed on the owners.

The Washington Post

A developer-paid, multimillion-dollar community benefits package, including money for improvements to nearby schools, libraries and parks, did little to satisfy residents who say they worry the new shopping center will fail to attract more and better retail options, such as sit-down restaurants and a big-box store, without pricing them out.

Others say after eight years of delays and false starts, Skyland's redevelopment is not inevitable.  

 

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Even if the city official is not in any way a participant in the negotiation process, embarrassment results once those close to them, be they family or friends, are in the acquisition process.  
    When the aunt of a St. Petersburg city official acquired something in excess of fair market value, even if otherwise acceptable, the result was an embarrassment to the community!

Tampa Bay.com
    
"We will pay her the $80,000 it appraised for in 2007, as we would like to maximize the benefit to your mother with her purchase of a new home," McGarr wrote. "The (next-door neighbor's) new appraisal came in $25,000 less than the (2007) appraisal and that kind of hit would not be good for her."

McGarr's boss said the e-mail only suggests a negotiating tactic to coax Gray, who had been unwilling to sell.

"That was Amy's attempt to generate enthusiasm for the sale," said Bruce Grimes, director of the city's real estate and property management department. "Whether it was (Gray) or anyone else, they would have been treated the same way. Who this woman was had no influence. It was a nonissue to us."

Yet the Times discovered McGarr's e-mail only after Gray provided it. It had not been included in a file on the project the city provided for review.

"It should have been in the file," Grimes said.

No money is available to build the park, but beginning in 2007, city officials had about $565,000 to purchase property for it. The job to find it was assigned to the city's real estate department.

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