National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

Legal Costs, Litigation Expenses and Eminent Domain

Posted in Uncategorized

Governments and private entities acquiring property often have the problem of spending more than is necessary to acquire property. One may just think a position is “right” creating a need to fight because it is a matter of “principle.” Here, the Virginia Department of Transportation has moved forward, with attorney fees and costs which are a multiple of the Just Compensation to be paid. How do you treat owners fairly when you burden them with the cost and efforts of defending their rights to Just Compensation when one has a government with unlimited abilities to fight with OPM (other people’s money; i.e. public).

As a recent article in The Virginian-Pilot pointed out, VDOT’s ham-fisted tactics have now cost taxpayers $140,000 in legal fees. That’s just a hair short of the difference between what VDOT initially estimated the Ramsey’s land to be worth in 2009 and the amount the Ramseys asked for.

If VDOT had simply agreed to the Ramseys’ request, it could have spared itself years of effort and embarrassment. By the time the case is over, it will have spent more than it would have on the Ramseys’ asking price.

Yet a recent court filing by Attorney General Mark R. Herring suggests the agency still might not give up. And to add insult to injury, we now learn that the Ramseys made an offer to settle back in February of 2014 that closed the gap between the two parties to only $20,000. VDOT said no.



How Do You Treat Farmers Fairly?

Posted in Uncategorized

In many jurisdictions, the farmers are considered the guys with the bucks. Clearly, many farmers have done well over the last ten years. Hopefully, some of this money has been kept “at home” and has not been moved out of the local community.

In Rhode Island, land use is a real problem. Here we have property ready for development. At the same time, there is value in something more than just farming for these properties.

The Warwick Beacon article does not fully comprehend what is “fair” or “unfair” to farmers. Realistically, the state determines that it wants to protect farmers, you can easily do this by proper statutory enactments. This is why some states provide a premium to personally owned residential properties subjected to condemnation.

Each of us has to figure out what is fair, and that is spoken through the state legislative body. What happens on farms in our future and for our future, must be determined through state legislative action. This is not an easy decision to make, but one that needs to be made each and every time there is an opportunity to develop land for non-agricultural use.,102072?ord

For a home or business owner, compensation equal to 150 percent of a property’s real estate value, based on a sliding six-to-12 comparative market value scale, is more than a fair payback. With such a payment, one can easily purchase another house or set up shop in another office or storefront. For the farmer, who is subject to the same eminent domain taking and compensation policies, a 150 percent compensation level does not break even in the long-term.

The eminent domain compensation amount granted for farmland is based solely on physical acreage and incidental fees. It does not account for the productivity, arability, and cash crop value of each acre, leaving farmers with a definite quandary. Farmers lose not only their land, but also the accrued annual income for each year the land is no longer in their ownership.

Consider a typical Rhode Island farm in the USDA’s view: In 2012, the average Rhode Island farm contained approximately 56 acres. Nationally, the average price of hay, one of Rhode Island’s most important crops, sold for approximately $226 per ton, with 1.88 tons produced per acre per year. Using the 2012 national average farm acre price of $2,650, a Rhode Island farmer whose land was seized under eminent domain powers would be entitled to an upfront payment of $222,600. Though it is a fair compensation for the physical land lost, this amount does not come close to compensating the profit lost at a yearly rate. The same farmer would lose $23,793.28 in income per year, for a grand total loss of nearly a half million dollars over a 20-year period.

As advanced as Rhode Island’s eminent domain laws are, they lack differential policy. To be truly fair to all types of landowners, the Rhode Island General Assembly must recognize the inherent differences between agricultural and other entities, as the former must receive fair consideration for lost profit in a way that other, more easily transplanted businesses do not. Farmers have long been the backbone of the United States of America. Rhode Island would do well to act as an example for the rest of the nation and take steps toward full protection of farmers’ rights and revenue.




Title Disputes In Eminent Domain

Posted in National Eminent Domain

The St. Louis Public Radio article discussing the dispute over who owns the “McKee parcels” is a prime example of how an eminent domain statute is to work when title disputes exist.

Almost every State has a procedure in which all parties who may have an interest in the property are notified of the condemnation, then proceed on to the eminent domain just compensation issue. Either a separate title action or a statutorily designated process which is part of the eminent domain proceeding will determine who is to be paid. Robert Denlow, the outstanding and leading eminent domain lawyer of St. Louis, described the Missouri process in the attached article.

But the Board of Aldermen’s approval of eminent domain to clear the site protects the project, according to attorney Bob Denlow. An expert in eminent domain, Denlow said the city’s Land Clearance for Redevelopment Authority can still buy the land, even if it’s not clear who owns it.

“The fact that McKee and Titan have a difference in opinion as to who has what rights to the property or the proceeds won’t affect the condemnation,” he said.

He said the court could appoint three commissioners to decide how much the LCRA should pay for the land. If any of the parties were unhappy with the amount, a full jury would decide. Then, he said, McKee and Titan could go to court to decide who should get the money.

When Does a Subterfuge Give Cause to Bar a Condemnation

Posted in National Eminent Domain

While the Judge “slammed” Readington’s attempt to stop development, the issue may end up with a question of whether the final use is a “Public Use” under the framework of the jurisdiction. In some jurisdictions, the Courts will not look to the true intent of an eminent domain proceeding, but will simply find that the contemplated use by the government is a Public Use. In the Solberg Airport situation, the limits of providing deference to a legislative decision simply were not imposed upon the Court. Yet, an Appellate Court may not arrive at the same result as the Trial Court Judge provided in his recent decision. With a judge dismissing the township’s lawsuit to acquire the development rights to Solberg Airport through the power of eminent domain, the next move in the decade-long legal battle is up to the township committee. James Rhatican, the township’s attorney in the case, told Superior Court Judge Paul Armstrong on Monday that he would have to meet with the township committee and discuss options, including the possibility of an appeal. Armstrong’s 54-page ruling came after a 48-day trial that began in May 2014 and ended in January with testimony from 11 witnesses and more than 800 pieces of evidence. The judge also reviewed 5,600 pages of court transcripts.

Tax Cuts For Oil Drilling In Michigan

Posted in Michigan Eminent Domain, National Eminent Domain


With the March passage of a tax cut for oil drilling, the prospect of further mineral removal in the State is increased. While there may be those who think nothing should be taken out of the ground, the reality is that Michigan is still in a position of cost competition with other jurisdictions.

Carbon dioxide is one of the alternatives in fracking. The downside of carbon dioxide is that the wells will no longer be available for gas storage in future years. However, the utilization of carbon dioxide removes the product as a negative force in the general environment.

“Under House Bill 4885, sponsored by state Rep. Aric Nesbitt, companies that use an enhanced method of extracting oil, also called enhanced oil recovery (EOR), will benefit from reduced taxes. Under this bill, EOR projects will be taxed at a 4% severance rate, rather than 6.6% for oil and 5% for natural gas, as has been the case under Michigan’s Severance Tax Act.

The method uses CO2, which is injected into depleted oil and natural gas wells to push the once-unattainable oil toward other wells where it may be pumped to the surface. It offers the environmental benefit of permanently trapping the CO2underground.”

Raisins and Takings; An Interesting Mix

Posted in National Eminent Domain

The required set-aside for raisins, created by 1930’s legislation, is now met with the issue of whether a required set-aside is constitutionally infirm. I am surprised that the Solicitor General did not take the position that this akin to a “tax” and therefore a valid part of legislative process. This would fall in line with the five-person majority in the Obamacare case. However, here a Justice of the Obamacare majority seems to fall in line that there may indeed be a taking when there is a required set-aside for raisin cultivation. One can readily see Justice Breyer finding the taking, but questioning the damages (just compensation). This case is one in which the derisive nature of the Supreme Court’s questioning can only lead one to believe that the long-maintained, whether constitutional or not, statute is to be set aside for failure to pay just compensation for a “taking.”

The Agriculture Department imposed fines, and the Hornes defended themselves on the ground that aspects of the program violated the takings clause of the Fifth Amendment, which says private property may not be taken for public use without just compensation.

The Hornes’ lawyer, Michael W. McConnell, said the program was distinctive because it required “an actual transfer of the raisins themselves.” Government regulations limiting how much farmers may produce present different questions, he said.

The court’s more liberal members did not sound enthusiastic about the program, but they may not have been convinced that it ran afoul of the Constitution.

Justice Elena Kagan told Mr. Kneedler that the program, which she called “a weird historical anomaly,” could be both ridiculous and lawful. When the justices heard an earlier appeal in the case in 2013, she said the court’s task was to “go and try to figure out whether this marketing order is a taking or it’s just the world’s most outdated law.”

Joseph L. Singer to Receive Prestigious Brigham-Kanner Property Rights Prize

Posted in National Eminent Domain

Joseph L. Singer, the Bussey Professor of Law at Harvard Law School and a brilliant thinker on Property and Property Rights, will receive the Brigham-Kanner Property Rights Prize on October 1, 2015, at the William and Mary Law School.

The William and Mary Law School has taken upon itself to organize an outstanding property rights project, one which is nationally known and respected.

The Law School should be honored and is honored in not only presenting the program, but providing the opportunity for students, practitioners and academics to fully discuss and discern the property issues of our times.

Lynda L. Butler, Chancellor Professor of Law and director of the William & Mary Property Rights Project, noted that Singer has written extensively on virtually all aspects of property. “It is a great pleasure to honor Professor Singer for his outstanding contributions to the field and to celebrate his prolific scholarship which so eloquently invites scholars, students, and lay readers to explore new ways of thinking about property and ownership,” she said. “We look forward to presenting him with the prize at our fall conference.”

Singer, who joined the Harvard Law School faculty in 1992, was appointed Harvard’s Bussey Professor of Law in 2006.  Prior to that, he taught at Boston University School of Law, practiced law in Boston, and served as a law clerk to Justice Morris Pashman of the Supreme Court of New Jersey.  In addition to books on property law and federal Indian law, he has published more than 70 law review articles. He received his law degree and master’s degree (Political Science) from Harvard and is a graduate of Williams College.


To Fight or Not to Fight: The Pipeline

Posted in National Eminent Domain, Ohio Eminent Domain, Uncategorized

The Toledo Blade offers an interesting conflict on the pipeline challenges. Without question, owners do not want the pipelines. Equally without question, the owners do not want to “give” up their property for nothing. Michael Braunstein, a noted and respected lawyer in Ohio, maintains that it is important that people obtain lawyers to fight for their compensation. On the other hand, Terry Lodge, a Toledo attorney apparently working with the activist groups in opposition stated first, a challenge should be made to the process. Realistically, what needs to be done by those who desire change is they “get it together” and figure out how to establish a reasonable basis in opposition to the pipeline with the Federal Energy Regulatory Commission. This is a difficult process indeed. Yet, without going to FERC, there is no reason to claim no one is objecting to the pipeline because courts provide almost complete deference to FERC decisions.

“One of them, Michael Braunstein, of Goldman & Braunstein LLP in Columbus, told The Blade after meeting with 50 residents in Fremont on April 15 he believes a high percentage of landowners — probably 70 percent — usually accept a pipeline company’s initial offer, while the rest hire lawyers. Mr. Braunstein’s basic advice to those in the audience was to not sign anything — especially easement rights — before first consulting an attorney, whether it’s someone in his firm or another one. Once a landowner signs a right-of-way easement, negotiating compensation for losses becomes harder, he said. Pipeline companies should be willing to pay for insurance and all damages unique to one’s property, from any water pollution to livestock losses in event of a leak or explosion. In many cases, pipelines should be laid near fences instead of across the middle of land, he said. Landowners should look for lawyers who specialize in eminent domain, the proceeding under which pipeline companies may seize rights of way when landowners balk at signing easements, said Mr. Braunstein, who has specialized in that area for 20 years. “The recent development of Ohio’s shale-gas deposits has spawned thousands of miles of pipelines to carry the gas produced by shale fracking. It has also spawned thousands of conflicts between the pipeline companies and the landowners in their way,” according to comments his law firm filed March 20 with FERC. “Without representative intervention early in the FERC process, Ohio landowners face permanent and irreparable harm.” Terry Lodge, a Toledo attorney working with activist groups, said the simple advice of getting a lawyer needs to be examined too, because that’s “built on the perception that there’s nothing that can be done to stop an inevitable pipeline. “That sweeping concession locks down the route and commits the project to be completed,” Mr. Lodge said. Paul Wohlfarth, a CORN member, said the group has advised landowners along the route to hold off on legal advice for the time being. Read more at


Underground Propane Gas Storage Expansion In New York

Posted in Ohio Eminent Domain


The Finger Lakes area in New York is a beautiful and pristine community. Yet, gas storage facilities already existed and have been utilized as gas storage for over 60 years in the area. The expansion creates a hostile atmosphere to the proponents of propane gas storage in the area; i.e. the storage companies.

“The Finger Lakes region has been home to multiple propane storage facilities for more than 60 years. These facilities have operated safely and strengthened local economies, without jeopardizing communities or other growing industries,” said Robert Phillips, chairman and CEO of Crestwood Midstream.

“Local residents and businesses understand the facts about this shovel-ready project and the real benefits it will provide their communities,” he said.

The company is encouraged by the positions expressed by state Department of Environmental Conservation staff at an issues conference held recently in Horseheads, Phillips said.

“Based on expert analysis, science and historical data, DEC staff made clear that its review of this project has been extremely thorough, and that there are no issues requiring adjudication,” he said.

The Houston-based company wants to build and operate a new underground facility for the storage and distribution of propane and butane in salt caverns on a portion of its 576-acre site in the Town of Reading.”

Can Chrysler Expand in Toledo Without Eminent Domain

Posted in National Eminent Domain, Ohio Eminent Domain

Prior to the post-Kelo limitation on eminent domain proceedings for private benefit, the Jeep Plant could have continued an expansion contemplated years ago through eminent domain. However, the limitations set by the Ohio Court decisions has required an alternative method of obtaining property. This is called the market.

In all likelihood, Jeep will do what Marathon did in Detroit, quite simply make offers for far more than the properties may otherwise be worth, with an understanding that all parties will sell at the same set per unit price.

It is suggested that Chrysler looked to the Marathon procedure in order to proceed with a necessary expansion.

“That seems to be a pervasive feeling through the neighborhood. One longtime resident said moving isn’t desirable, but the resident doesn’t want to end up having the last house on the block. And most of the neighbors, the resident said, will probably go.

Todd Scharff may not have a choice. Mr. Scharff rents one of the 14 homes. As soon as he received the city’s letter, he started looking for a new place to live.

“I’m sure it’ll happen,” he said.“They’ve been digging through back there for a while. I’m guessing they’re probably going to end up doing the same thing here.”

Mr. Scharff believes his landlord would sell if he gets an offer.”