National Eminent Domain

National Eminent Domain

Eminent Domain and Condemnation

Does The No Duty to Negotiate With Mortgagee Make Sense?

Posted in National Eminent Domain

The New Jersey Supreme Court recently entered a ruling in which it no longer requires the condemning authority to negotiate with mortgagees.  Clearly, this is not the rule in most jurisdictions given that most jurisdictions deem the mortgagee a party in interest and property owner.  One should recognize that the statutory delegation differs in each State.

This ruling is so bothersome because many mortgage agreements provide that the attorney fees for the lender will be borne by the borrower.  This process does not provide a favorable result for owners, although at least it provides the owner the opportunity at the owner’s sole discretion to make a mess of the case.  Such is eminent domain in New Jersey.

New Jersey Law Journal

In a unanimous ruling in Merchantville v. Malik & Son, the court said New Jersey’s Eminent Domain Act, N.J.S.A. 20:3-1 to -47, states unambiguously that a condemning authority is only obligated to negotiate with the property’s title holder.

“The act does not recognize real parties in interest or those with more interest or concern about the state of the property than the title holder of record,” Appellate Division Judge Mary Cuff, who is currently temporarily assigned to the Supreme Court, wrote. “This limitation to the title holder of record is consistent with generally recognized and applied principles throughout the country.”

Dealing With ODOT

Posted in National Eminent Domain

Under Ohio law, ODOT is not required to pay or consider the assessed value of a property.  Each State has its own rules on the admissibility of appraisals and valuations for tax purposes.  ODOT’s determination is one of fair market value.  Frequently fair market value is more than the assessed value, but there are those times when people have to pay the government based on a much higher value than what is finally contained in the offer received.

Sandusky Register

But what about the Huron County Auditor’s office total estimated value of Logan’s property — nearly $30,000 more?

“We’re not permitted to use that as a value,” Stacy said.

ODOT hires its own contracted appraisers to determine a “fair market value” for properties it acquires.

ODOT appraisers use three different approaches to determine this value: a market, cost, and income generator approach.

Barrett said lawyers who see eminent domain cases with blatantly unfair treatment will often take them on knowing they’ll be paid after they win.

But Senate Bill 7 wasn’t passed soon enough for Logan, who said she accepted what ODOT gave her because she didn’t have the money for a legal battle.

Stacy said his department’s eminent domain powers come from not only state law, but from the Fifth Amendment of the U.S. Constitution.

Stacy said eminent domain powers are very rarely used by his department, partly because state eminent domain laws are so strict.

“Each modification of the Ohio laws have made Ohio laws more restrictive than federal laws to the betterment of Ohio property owners,” he said.

The Mahaska County, Iowa, Approval Of Wind Turbines Offers The Highs And Lows Of Wind Development

Posted in National Eminent Domain

First, the community was foolish enough to think it was required to grant tax abatement in order to retain wind developers.  The tax income derived from these turbines would be a basic support for agricultural communities during the “down times” that are bound to occur.

The company cannot acquire easement area by eminent domain.  This allows for the market to determine what is to be paid for the installation of turbines.

The proposed wind farm project in Mahaska County is moving forward. On Monday morning, the Mahaska County Board of Supervisors unanimously passed a tax abatement ordinance for the proposed project by RPM Access.

RPM Access is a developer from De Soto, Iowa that constructs wind farms. The tax abatement reduces taxes for the project. And that was necessary for the project to continue moving forward. The board also unanimously waived the second and third readings of the ordinance.

“I’m certainly in favor of the ordinance,” says Mahaska County Supervisor Mike Vander Molen.

RPM Access does not have any eminent domain powers. So the project requires all landowners agreeing to lease their land to the company. RPM Access Project Developer Jim Dimond says the financial compensation the landowners would receive is much greater than the value of their land.

“I think we’re getting good reception with the landowners, and we’re proceeding with the idea that construction would occur in 2015 or 2016,” Dimond says. “All the wind farms that have been developed in counties around the state have adopted this same ordinance.”


Can Anything Stop Construction Of The New Bridge To Canada?

Posted in National Eminent Domain

Detroit Free Press writer, John Gallagher, did a correct and precise job of explaining the difficulties in the potential completion of the Detroit River International Crossing project.

The question of whether anything can stop construction of the new bridge is probably best answered by our individual mortality.  The bridge will be built.  But other questions include for how much and for how long can the project be delayed.

The bridge is a mandatory part of the commercial viability of Detroit and Windsor, Canada, for the next century.  The project should move forward to completion.

Detroit Free Press

After years of debates and delays, there are still a few more roadblocks for bridge builders to navigate around before the NITC opens. The Moroun family, owners of the Ambassador Bridge, continue to pursue a slew of legal challenges in the U.S. and Canada to try to block the new bridge. Those legal challenges so far have failed to halt the project.

Then, too, the U.S. government has yet to commit to spending around $250 million to build its new Customs plaza on the Detroit end of the new span. Without a Customs inspection plaza, the new bridge wouldn’t be allowed to carry any traffic.

Missouri Owners Speak At PSC

Posted in National Eminent Domain

The Missouri PSC has held public hearings for landowners to vent their complaints against the proposed Grain Belt Express electric transmission lines.

Much more than mere griping is needed.  A concise and fair explanation of why the line is going either in the wrong place or is not necessary is required.  The landowners seem to be somewhat well organized, but, in all likelihood, they will hire one of the outstanding Missouri eminent domain lawyers from the office of Robert Denlow and Paul Henry in St. Louis to protect owners in obtaining adequate just compensation and damages.

The Caldwell County News

The Missouri PSC held its first two public hearings concerning the highly controversial Grain Belt Express on Tuesday. The company is seeking to become a public utility in Missouri with the hope of building a mega high voltage DC power line through the state that would originate in Kansas and terminate in Indiana and provide power to the east coast. The company has promised that they will build a substation that would make less than 1% of Missouri’s annual energy usage available for purchase by local utilities.

Opponents of the project were mostly Missouri landowners and farmers who are determined to block the company from receiving public utility status, because it would allow them to use eminent domain to force landowners to host massive power lines on their property. The Missouri PSC will ultimately decide if the private, speculative company from Texas should be granted such power over Missouri citizens. The PSC is holding a series of public hearings in each of the eight impacted counties.



Pivots Cause Water Taking Issue

Posted in National Eminent Domain

The High Plains Underground Water Conservation Board in Texas has chosen to limit the amount of water to be removed from the Olagalla Aquifer.  There is a concern that the water is being removed faster than it can be replenished. 

Even the experts probably do not have a full understanding of how the removal of water from aquifers really works.  However, if the aquifers run out of water, the ecosystem may be severely challenged.  Yet, owners have bought and sold their properties premised upon the right and potential to remove water from the aquifer.  This raises a serious Fifth Amendment issue.

The Telegraph

Water – not oil – has always been the most valuable resource in the West. Wars have been fought over it, feuds maintained, and fortunes won or lost. Apart from the Ogallala, the main source remains the Colorado River, flowing west from the Rockies, its annual bounty of snow melt providing the drinking water for Las Vegas, irrigation for California’s Central Valley, and the swimming-pools of Los Angeles. No one is surprised that the mighty Colorado now runs dry before it reaches the Pacific, nor that climate change, with falling rain and snow levels, spells potential disaster for the Sunshine States. There are at least public controls over most of this water, even if it is actually owned by corporations and very rich people with ‘water rights’.

But Texas, true to its self-conscious style of ‘rugged individualism’, has no such legal controls. It maintains its Wild West-era laws of ‘right to capture’. This means that if you have water under your land, or in a river running through it, you can take and use as much of it as you like. You can water the corn or the cows, or you can make a buck by selling it to the nearest thirsty suburb. If you want to drain your land into desert, you may.

‘Obviously it would be a disaster for the Panhandle,’ Steve Walthour, manager of the North Plains Groundwater Conservation District, says. ‘But if there are no limits, he can take all he wants. That’s the law of capture.’

Texas conservatives, at the core of America’s faith-and-business culture, root for Pickens. Brent Connett, a policy analyst for the Texas Conservative Coalition Research Institute, pushes the view that trading farming for selling water is a ‘right’ upheld by 100 years of Texan law, and can only bring new prosperity. ‘The water business, if allowed to bloom,’ he believes, ‘can be the advent of another multi-billion-dollar business that will tremendously benefit all Texans, especially those who hold the rights to the water in the Panhandle.’

Mortgage Bailout – Taking or Regulation?

Posted in National Eminent Domain

Pershing Square’s initiation of an action against the United States government for the stripping of profits from Fannie Mae provides the issue of whether Fannie Mae and its sister entities are effectively government agencies or really for-profit corporations.

Those who invested in these companies thought they were buying something that did not exist.  If the government cannot regulate the funds of government controlled entities, what can investors expect?  At the same time, when investors buy into corporations, they take the risk that the corporation may not be profitable.  Here, the investors probably thought that the profitability was a “guarantee” because of the government’s involvement.

Today Online

“The net worth sweeps make plaintiffs – and all of the other common shareholders – ‘shareholders’ in name only,” according to the complaint, which three retirees who own Fannie Mae stock have joined as plaintiffs.

Pershing accused the government of violating the Fifth Amendment of the U.S. Constitution by taking private property for public use without just compensation. It seeks damages and other remedies.

The Treasury Department declined to comment. The Federal Housing Finance Agency, which is Fannie’s and Freddie’s conservator, did not immediately respond to a similar request.

Pershing’s lawsuit adds to public battles being waged by Ackman, including a bid with Valeant Pharmaceuticals International Inc for Botox maker Allergan Inc , and a campaign against nutrition company Herbalife Ltd , which he calls a pyramid scheme, a characterization the company denies.

A Promise Made, A Promise Never Made

Posted in National Eminent Domain

After reading the Columbus CEO article describing the recent Montgomery County Common Pleas decision, one would think that if the City promised that it would not condemn in the future, the promise would be binding.

To the contrary, when it comes to eminent domain, a negotiated promise not to acquire in the future does not necessarily prohibit later governmental administrations from seeking an acquisition through the condemnation process.

Columbus CEO

The company contends the city is improperly using eminent domain to reclaim the road, which would breach the terms of its agreement. The city has argued that it maintains the right-of-way, and merely wants to re-establish a public road.

Judge Michael Tucker ruled the city has not exercised eminent domain and the court cannot grant injunctions for hypothetical actions that have not taken place.

But Tucker noted the city did not forfeit its right to use eminent domain when it agreed to the easement, and eminent domain when properly exercised takes precedence over all private rights.

“The city’s execution of the easement was implicitly conditioned on its right to exercise the power of eminent domain, and (Dayton Office Properties’) … are presumed to have known and recognized as much,” he wrote.

The Railroad Commission Places Its Toe In The Water On Pipeline Permits

Posted in Uncategorized

The Railroad Commission of Texas is what most States call “Public Utility” or “Public Service Commissions”.  The regulation by the Railroad Commission is tantamount to absolute control of a use through the court system.

The question of whether a proper and necessary license with real issues raised is still festering in the Railroad Commission.  The Denbury decision has created certainty that the delegation is required.

The New York Times

The Railroad Commission of Texas — which regulates the state’s 426,000-mile network of natural gas, hazardous liquid and other pipelines — has offered rules aimed at clarifying when pipelines qualify as “common carriers,” a status indicating availability for public use and enabling companies to seize private land using eminent domain. The agency is accepting comments on the proposal until late August.

The proposal would require companies to submit documentation supporting a common carrier claim and give the commission 45 days to review an application. Currently, companies seeking common carrier status need only to mark a line on a permit application — an honor system that has spurred legal battles over eminent domain claims.

How To Sell Property To A Developer

Posted in National Eminent Domain

The real estate advisor for Fox Business provides an interesting question and answer about how one should try to sell a property to a party who seeking to assemble properties for a redevelopment.

The article currently maintains that trying to sell quickly and early to a developer is not necessarily the best way to proceed.

With a reversal of Poletown in Michigan, the proposition that one may sell for a “profit” to a developer is now available since developers can no longer see the local politician to acquire the land through the eminent domain process.

Fox Business

But do not — and I repeat — do not try selling directly to a developer/builder. These folks, when dealing directly with a property seller, will base their typically lowball offers on a “fair market value” determined by appraisers they hire, who are typically agenda-led cronies. Such offers will almost certainly not take into account the recent increase in land values that all this upscale multi-tenant development is creating.