National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

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.

Mixed Review Of Opportunity Corridor Will Have Little Affect On The Progress

Posted in National Eminent Domain

The recent challenge of the United States Public Interest Research Group to the Opportunity Corridor, holding that it was one of the ten lowest priority road projects in the country, will have little affect on the construction of the project.  The reality of the situation is that if the State determines that the funds should be used and the local community supports the use of the funds, this project will go forward.  This is not to say the project is good or bad, but rather it is to state that when the appropriation is made and the desire of the sovereign to move forward continues, there is a likelihood that the Opportunity Corridor or any other project supported by the entity with the funds, will proceed.

Bidding Process Starts For Bridge

Posted in National Eminent Domain

A recent article by Mr. Gallagher at The Detroit Free Press would lead one to believe that the bridge contracts are being let.

To the contrary, the funding must be completed. This funding will be come from the Quebec National Parliament appropriation process. The funding has not as yet occurred. However, funding is available to hire an in-house staff, a requirement if the process is to move any further forward.

Detroit Free Press

The Star quoted Michael Cautillo, the authority’s new president and CEO , as saying the proposals being sought would be a key step in helping the newly formed authority get organized.

“We look forward to having local and area businesses compete and for them to be part of this exciting project,” Cautillo said.

As reported by the Free Press recently, Cautillo has said the authority eventually will hire 40-50 staffers to help him run the project.

The future span, known as the New International Trade Crossing, is planned to connect Detroit and Windsor about two miles downstream from the Ambassador Bridge. The bridge is expected to be ready for traffic around 2020 and to create thousands of construction jobs.


American Lake Water Company Obtains Attorney Fees

Posted in National Eminent Domain

In one of the rare instances in which the government is required to pay an attorney fee in Illinois, the water consortium seeking to purchase a water company now must write a check to the utility it attempted to acquire.

 If the government is to acquire property, it must show the delegation to acquire and fulfill every statutory obligation.  In this Illinois water situation, the government failed to properly file.  It is now suffering the error because the statute provides for reimbursement of attorney fees when a dismissal occurs.

Chicago Tribune

Kansas Judge Requires An Injunction

Posted in National Eminent Domain

Each State maintains its own system of challenging an eminent domain proceeding.  Due Process requires some method in which to challenge the propriety of a taking.  Many States have a challenge to necessity or some type of motion for leave to challenge.

In Kansas, a County Judge stated that an Injunction was the only way to initiate a challenge to an eminent domain action.

An owner should carefully look at the respective State in which the property is located to determine the appropriate method for challenge.

Dodge City Daily Globe

Judge Van Z. Hampton, who is officiating the eminent domain process, said an injunction is “the only method to defend against the condemnation action,” as the eminent domain process is explicitly defined by state law and does not follow the civil trial rules of procedure. As such, the injunction is considered a separate action.

The injunction had not been assigned to a judge or date set as of Tuesday afternoon.

Meanwhile, the eminent domain claim by Mid-Kansas continues, and three appraisers were named by the court to determine fair market value of the 28 tracts of land named in the claim. Mid-Kansas is seeking the use of a 100-foot wide by 18-mile stretch of land from Spearville to North Fort Dodge to construct a 115,000-volt transmission line.

The two sides agreed to select Bucklin realtor and appraiser Spike Cossell, auctioneer Wade Kirk, also of Bucklin, and Jody Wetzel of Southwest Appraisal Service. By law, court-appointed appraisers must be qualified (but not necessarily certified) and live within Ford County.

Jim Kobza Was A Wonderful Lawyer And An Equally Wonderful Man

Posted in National Eminent Domain

The article prepared by The Muskegon Chronicle regarding the passing of Jim Kobza should be noted in every eminent domain blog. 

Jim worked as a government-side condemnation lawyer for almost 50 years.  He did an outstanding job, fairly and fully representing governmental agencies.  The article attached speaks well of him and his family life.

Yet, The Muskegon Chronicle article failed to describe two very important elements of Jim’s personality.  First was his brilliant technique in appropriately and fairly representing governmental agencies, especially the Michigan Attorney General.  Frank Kelly and his successors, Mike Cox and Bill Schuette, have always considered eminent domain a Constitutional protection; one in which the owner is to be treated fairly because the owner is losing the basic individual liberty of owning property.  Jim Kobza handled that assignment in perfect form.

Second, and of greater import, is that the article failed to point out that not only was Jim a successful, strong-willed and active lawyer; but Jim Kobza possessed impeccable integrity.  He knew how to properly and fairly represent a position without shaping the table in an unfair manner through any form of taint or prejudice.  Jim’s outstanding integrity will always be remembered.  May Jim’s wife and children be blessed by the memory of not only a wonderful Father, but someone to emulate.

Over the course of his career as a lawyer, he handled more than 500 jury trials in 25 Michigan counties, according to an obituary from the family. In 1960, he was appointed a special assistant attorney general, assigned to the Michigan Department of Transportation to handle eminent domain and highway liability court cases.

In recognition of his work, the Muskegon Bar Association went so far as to award him its Liberty Bell award in 2000.

“Our rules state the Liberty Bell winner is a person who is not directly in the legal profession,” said Muskegon Family Court Judge Gregory Pittman, chairman of this year’s event. “But we decided to bend the rules this year because of all the great contributions Jim has made in the legal community. He’s done so much for so many people who are practicing law. This is a one-time exception. We probably won’t do this for another millennium.”

The Major Pipeline Being Built In West Virginia, Virginia and North Carolina

Posted in National Eminent Domain

A consortium of four major gas pipeline companies has arrived at an agreement in which one pipeline will traverse West Virginia, Virginia and North Carolina.  This pipeline is intended to move fracked gas from West Virginia to the southeast.

The pipeline will have major affects on land use.  One can fully expect that people like Joe Waldo, the outstanding Virginia lawyer, and eminent domain attorneys in North Carolina and Virginia will be kept busy with this pipeline.

Norvelle said 72 percent of landowners agreed to let Dominion survey their property for the line.

He added Dominion only uses eminent domain when they have to. Ninety-five percent of the time, Dominion does not use eminent domain, which would allow a utility to run through a person’s private property without their consent.

“If we need to get eminent domain, that’s way down the road,” Norvelle said.

Gov. Earl Ray Tomblin stated in a press release that he appreciates Dominion’s continued investment in the region and looks forward to capitalizing on the state’s abundant supply of natural gas.

“We continue to be optimistic about the existing and future opportunities this industry brings to the Mountain State, and today’s announcement by Dominion has the potential to create good-paying jobs for our hard-working men and women,” Tomblin said. “West Virginia is proud to continue its legacy as an energy-producing state and help create energy independence for our country.”

Virginia and North Carolina governors also voiced support for the project Tuesday.

Norvelle said three compressor stations will be built for the pipeline: one in West Virginia near the start of the pipeline; one in central Virginia in Buckingham County; and one to be determined later near the Virginia-North Carolina border.

The pipeline will flow southeast from Harrison County through Virginia with an extension to Chesapeake, Virginia, and then south through central North Carolina to Robeson County.

The four companies have 20-year contracts to be consumers of the pipeline. PSNG Energy also plans to have a 20-year consumer contract.

Why Did ET Rover Move From Oakland County to Genesee and Lapeer Counties?

Posted in National Eminent Domain

There are literally hundreds of property owners in Lapeer and Genesee Counties who are asking why Rover is suddenly appearing in their County after Rover originally planned to route its new pipeline adjacent to the existing Enbridge line 6B in Oakland County, Michigan.

The answer is somewhat convoluted.  First, property owners outraged by the treatment by Enbridge were organized and refused to allow one more pipeline to carve their properties.  These individuals are in many cases burdened with multiple utility easements already.  Almost each has multiple Enbridge pipelines.  The new line was installed in the last year and one-half and a second line requiring replacement for 20 years which Enbridge continued to operate until it failed and spilled one million gallons in Marshall, Michigan.  Led by a property owner who was required to deal with Enbridge, Jeffrey Axt, the targeted owners organized into a group called POLAR, Protect Our Land And Rights.  Mr. Axt did an outstanding job of organizing the group to oppose the originally planned route.  However, of equal import was the help of Commissioner Michael Spisz and Commissioner Robert (Bob) Hoffman of the Oakland County Board of Commissioners.  No one is more hostile to an eminent domain project than an individual burned by a utility in the past.  Well, Commissioner Hoffman, an outstanding advocate for his constituents, suffered the humiliation of having Consumers carve up a substantial part of his property well outside of a granted 60 foot easement to replace an existing and aging gas pipeline on his own property.  Having been abused by the eminent domain process by a utility company, Bob Hoffman was well aware of the plight facing the citizens of Oakland County.  Commissioner Hoffman and Commissioner Spisz were wise in protecting the interest of the citizens in their respective districts.  They should be commended for their effort and congratulated for a rare success against a national utility seeking authority from the Federal Energy Regulatory Commission (FERC).

Rover Notice to Michigan Residents

Whiteman Air Force Base Challengers Take A Risky Route

Posted in National Eminent Domain

The Federal Government has acquired about 430 acres around the Whiteman Air Force Base in Missouri.

Apparently the owners believe that they may seek a challenge to the condemnation activity via a jury trial.  The owners are in for a rude awakening.  The only issue which will be determined by the federal court is fair market value.  Hopefully, the four owners will determine how to handle this situation correctly and properly proceed to protect their opportunity to receive just compensation.  However, should the owners take the foolish route of challenging the condemnation, they should at least look at the Federal Rules of Civil Procedure before thinking a jury trial will be obtained on the issue.

The Daily Star Journal Online

The government took title to the properties Aug. 11, the chief of asset management for the 509th Civil Engineering Squadron at Whiteman, M. Joe Joyner, said.

The government bought 647 acres, or 60 percent, of the total land sought, he said. Whiteman began negotiations more than a year ago with 16 owners of 24 parcels totaling 1,077 acres.

Four landowners seek a jury trial to keep the land.

“Regardless of litigation, the money can be given to them at any time should they want it,” Joyner said.

Remaining parcels have a fair market value of $1.86 million, he said.

“That was based on appraisals,” he said.

Joyner said the government now owns the disputed property.

“Possession is another matter. The government does not have to have possession of something to own it,” he said.

Maine Property Owner And Recent Sales

Posted in National Eminent Domain

A Maine property owner has received an offer for double what he paid for a property only three years ago.  However, when looking at the change in the market demand for waterfront usage, one should recognize that these changes are so dramatic and immediate.  Original purchase prices of only a few years before may no longer be relevant.

Portland Press Herald

The Maine Department of Transportation has paid a Portland businessman $7.2 million for 18 acres of industrial waterfront land it seized from him this spring, more than double what the businessman paid for the same land just two years ago, according to tax records and information obtained by the Portland Press Herald through a Freedom of Access request.

But the businessman, Phineas Sprague Jr., has given the state notice that he will likely challenge the value, a process that could lead to years of litigation.

While the land has been neglected and unused for decades, it’s now in high demand because of the unexpected arrival of an Icelandic shipping service last year at the adjacent container terminal.

The decision by the Eimskip shipping line in March 2013 to make Portland its only port of call in the United States has spurred the state to expand the terminal, which has struggled for years to build a reliable container service.

The project’s first phase, expected to start next month, is an $18 million project to create room for a new “wheel yard” so trucks can drop off and pick up containers. The state will also extend the terminal westward to a railroad line, allowing longshoremen, for the first time, to unload shipping containers from vessels and put them on trains in the same terminal.