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

Many States now provide deed restrictions, limiting further activities which may increase contamination at a site and avoiding the migration of contamination off the site. In a recent letter to The Muskegon Chronicle, the writer asks why there are deed restrictions and is there something that is being "hidden". To the contrary, deed restrictions publically notify all of the contamination and how the contamination is being controlled.

MLive

Why do we accept as fact that "deed restrictions" prevent the public from knowing what’s going on and around this property? Why aren’t tougher questions being asked?

Along similar lines, how is it that deed restrictions can possibly prevent all future owners in perpetuity from using the property for anything but "only for industrial purposes"? How could Sappi have possibly constructed an agreement that would prevent them from having any responsibility for pollution on the property by getting such a restriction? Sappi is now long gone and here our children and we are holding the legacy of a former absentee landowner. Didn’t our community leaders know or have some inkling that this potential restriction existed prior to the sale to Melching? There must be some very wealthy lawyers that got that language through! So where were our community leaders when this all came about? Did they not have concerns and some stake in how the property was sold, to whom and for what intended purposes? Were any of them asking the tough questions or were they just happy to see "something" occur that "might" bring more jobs to the community?

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In the recent letter of Michael Pritchardto The Elizabeth City North Carolina Daily Advance, the opinion lashes out at the community’s "bullying" of property owners.

The one thing the property owners have the opportunity to do in cases where the local courts hold the taking to be a "Public Use" is to simply seek full and fair Just Compensation.

Daily Advance

First it was the Hall property on Consolidated Road the city of Elizabeth City needed to complete the airpark project. City Manager Rich Olson tried to bully the Halls into selling property that was not for sale. Next it was the Farmer property the city needed to complete a substation. Again, Olson tried to bully Ms. Farmer into selling property that was not for sale. Just recently it was the Mansfield property across the road from the Farmer property the city needed for a substation. Again, the property was not for sale but again the city manager was going to bully the Mansfields into selling the property.

Lesson learned here: it’s OK to be a bully. For you young people who get caught at school being a bully, don’t let the principal call your family. Instead call City Hall. Have Olson, City Councilman Tony Stimatz or one of the other city council members come plead your case. They will tell folks how the lunch money was needed and how they will force eminent domain on them if they refuse to pay up.

Stay tuned. Olson and his bully crew of city councilors may be coming to your neighborhood next.

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The closed Muskegon Paper Mill site has offered the City the opportunity to try to demand a different use of the property of the demolition company that purchased the location.

Private ownership is the centerpiece of our democracy, and the common good sometimes offers a challenge to this prior right. Muskegon should be very leery of disenfranchising private ownership, and carefully scrutinize this activity to make sure that basic private ownership principles are in no way diminished by simple demands of owners when the public action stifles constitutional protections.

Muskegon News. (March 1, 2012) Retrieved from www.mlive.com

“I have to make this a business that works,” Melching said of his plans for the 120-acre site with nearly a mile of Muskegon Lake shoreline. “I hope we can make this a win.”

Specifically, Melching didn’t like the sound of a “public taking” of the property. A government taking private property must prove to a court a “public interest” and the court would then determine a fair price for the site – a legal process that can be lengthy and costly…

Citizens at the SOS meeting were challenged to begin conversations with the owner to see if common interests can be pursued. Warmington would agree with that strategy.

“We at the city want to keep good working relations with the owner and property developer,” the mayor said. “We want him to continue to have the best interest of the community at heart.”
 

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The Texas Supreme Court has appropriately reinforced its opinion that by simply calling itself a “common carrier” with the Railroad Commission of Texas, “common carrier” status is not provided. Texas Oil and Gas Association’s claim that this will affect Keystone is ill-founded. Texas Rice Land Partners involved a pipeline company simply moving its own gas and oil from the point of removal for its own personal benefit. This is not a “common carrier” use contemplated under the Texas statute.

State Impact Texas. (March 2, 1012) Retrieved from http://stateimpact.npr.org/texas

In a few additional footnotes to the original opinion, the court said today that a CO2* pipeline “cannot wield eminent domain to build a private pipeline, one limited in [its] use to the wells, stations, plants, and refineries of the owner. A common carrier transporting gas for hire implies a customer other than the pipeline owner itself,” they wrote. And that “to qualify as a common carrier with the power of eminent domain, the pipeline must serve the public; it cannot be built only for the builder’s exclusive use.”

“I can’t discern this changes anything of importance,” Amy Warr, an attorney for the Texas Riceland Partners, told StateImpact Texas. “We’re happy.”

Keith Strama, counsel for the Texas Oil & Gas Association, is less pleased. His group petitioned the court to re-hear the case.

“We’re concerned it will mean more case-by-case litigation” of pipeline eminent domain disputes, he told StateImpact Texas, “imperiling the development of the state’s pipeline infrastructure to meet growing demands of oil and gas production. But we think it is limited to only CO2 and hydrogen” pipelines, he said.

Strama also told StateImpact Texas that he believes the ruling won’t affect the ongoing battle between a farmer and the Keystone XL pipeline in northeast Texas. In that case, a private landowner is questioning the company’s claim of eminent domain to route the pipeline through her farm. There should be “no impact from the ruling or the order on the Keystone pipeline, it is not relevant to [it],” he told StateImpact Texas.

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Paula Holmes-Greeley, a writer for the Muskegon Chronicle, attempts a notion that a “collaborative approach” would be the best way to redevelop the paper mill property.

The reality is that this approach may or may not be in conflict with the owner’s proposed use. What needs to be done is that the owners should be allowed a granted use unless in contravention with the statutes and laws of the Michigan community. A “collaborative” approach would be best so long as the health and safety of the community is maintained and the reasonable and contemplated property rights of the owner are not interfered with.

Muskegon Chronicle. (March 2, 2012) Retrieved from www.mlive.com

What happens to this property is important. Some have said the decisions made today are 100-year decisions. Certainly, the community needs to look at the big picture and discuss how what happens on the paper mill property affects the city but also the region. That needs to be weighed against how the owner can generate a return on his investment while protecting the environment and being responsive to the neighbors and the community.
There are some things the community can do right now. Let’s find out about the environmental issues.

It may not be so important to know what type of pollution is on the actual site, which is essentially forbidden in the deed restrictions on the property, but to find out if any of the alleged pollution is leaking into Muskegon Lake, which is public asset. It also would be good to know what’s in the sediment in front of the paper mill property before any dredging begins.
The community needs to marshal resources of the Grand Valley State University Annis Water Resources Institute here in Muskegon and of environmental groups and individual experts to see if help is available to address the environmental issues that directly affect the public.

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This blog has presented a response to the Columbia newspaper on the unfairness of the self-proclaimed “Enterprise Zone” activities.

A contrary view was presented by Columbia Daily Tribune writer Jacob Barker.  What is not necessarily understood by the writer is that Columbia, with the blight designation is more likely to successfully acquire property via eminent domain.  The Courts will provide greater deference to the community claiming blight.

The Columbia Daily Tribune. (March 3, 2012)

So, local governments can use blight to take property. The EEZ statute even requires a plan to help people or businesses "dislocated" because of enterprise zone activities receive assistance. But a blanket blight designation, such as Columbia's, can't be used in itself to take properties.

"Where eminent domain authority is based upon a determination that a defined area is blighted, the condemning authority shall individually consider each parcel of property in the defined area with regard to whether the property meets the relevant statutory definition of blight," Chapter 523 reads. However, if the condemning authority finds a "preponderance" of properties in the blighted area meet the definition, "it may proceed with condemnation of any parcels in such area."

If Columbia were to take an eminent domain action using the blight designation, property owners affected by it could appeal the designation in court. 

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In the Lawrence Lile letter to the Columbia Missouri Tribune Editor, he asked whether the community will simply use the blight designation to improve its enterprise zone, calling his property “blighted” even when not.

The notion of “blight” will be the future fight throughout the nation. If a property is truly blighted, it should be acquired. But to call property “blighted” in order to more easily acquire the property through the eminent domain process, is not the type of blight that existed in the Berman v Parker, 1948 Supreme Court case.

The Columbia Daily Tribune. (March 2, 2012)

Editor, the Tribune: An enhanced enterprise zone, or “blight,” is a powerful legal instrument that can revitalize an area. Used wisely, it can help restore a downtrodden industrial plant or a shuttered shopping mall. The Columbia City Council has used this tool like a blunt instrument.

There are specific tracts that would benefit from designation as an enhanced enterprise zone, such as the old Osco Drug building, closed more than 10 years. Yet this building is not in the zone. My property on Oakland Gravel Road, a nice brick home that I keep well maintained, is supposedly “blighted.” The rental house across the street, which needs paint and has an old couch on the porch, is not “blighted.” None of this makes any sense.

Eminent domain is rightly used to make new roads, or expand a school. Eminent domain abuse occurs when public condemnation of a property is used for private gain. “Blighted” areas have been subjected to eminent domain abuse around the country. Despite proponents’ claims to the contrary, eminent domain can and will be used to force the sale of properties in blighted areas, usually at fire sale prices.

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A Columbia Tribune columnist, Ken Midkiff, gave a strong commentary in opposition to economic development.

The contrary voice was provided by Henry J. Waters III, contemplating redevelopment of truly blighted properties.

The issue may be in between the two articles. Is the area so blighted that it should be cleaned up? Clearly, the lack of indoor plumbing is indicia of blight. Yet, many properties which are not blighted are required by development agencies for end users who are clearly not public entities or public users.

Columbia Tribune

The primary focus of REDI's effort is the creation of more job opportunity, general community economic growth for everyone, rich and not-so-rich alike. How REDI goes about this quest is worth continual scrutiny, but it's not fair to misrepresent the agency's very intent.

In their overeagerness to cast eminent domain as an inherently evil tool, Midkiff and other critics cite Columbia's Land Clearance for Redevelopment program, created in the 1950s to implement a very successful federal law enabling the clearing and rehabilitation of slums like those that plagued our central city. Midkiff makes it seem as if a few white people cooked up the program to take over what had been a "rather thriving black community," implying land clearance was bad for the neighborhood black community.

Not so. Land was cleared and made available for otherwise impossible beneficial uses, including public housing operated by the Columbia Housing Authority. Under public auspices, other lots were sold to private companies, including the Tribune, which had no hand in managing the program. Some of the improved property was regained for use by black businesses. Existing slums without indoor water taps were bought and cleared, their residents provided decent housing.

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As noted in the attached Southlake Journal article about a Colleyville, Texas roundabout condemnation, homeowners become extremely protective of their rights and concerned about whether they are being treated fairly. While this blog cannot state who was "right" or "wrong", one thing is certain; that is when homeowners lose their property, they will frequently aggressively fight eminent domain activity.

Southlake Journal

"The city has obtained two independent value opinions for the property, but the Mitchells continue to insist on a price approximately 200 percent higher than the city's highest appraisal value," Boyle said. "The city takes seriously its responsibility as a steward of public funds."

Construction of the roundabout was supposed to start in 2011, but Colleyville delayed it to allow Titan Operating to get heavy equipment in and out of the drill site up the road. A sign announcing the project was removed because of vandalism.

Now, construction has been delayed to June, Boyle said.

Colleyville already purchased right-of-way from the Gentry family on the southwest corner for $80,000 in September.

Mitchell doesn't oppose the roundabout, he says it's needed to handle the additional traffic at the intersection, which he said is dangerous. But he has concerns that once the city takes his land, the street will be closer to his home.

The city has reneged on several key points, including how the driveways would be reconfigured and building a fence for security, Mitchell said. The telephone poles will be relocated to make way for the road, too.

"I'm not against the progression of the city," he said in an interview last week. "It's the way they're doing it."

Mitchell has lived in Colleyville for eight years. He bought the current property, which was in foreclosure, a year ago. He's appeared at multiple City Council meetings, asking the city to work with him.

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It is clear that Marathon is attempting to purchase homes near the massive and growing refinery in Southwest Detroit. Literally, neighborhoods of residences are being purchased on a voluntary basis.

Marathon should only be so fair to the businesses. By diluting the neighborhood of the residences, the businesses in the area not only lose their employees but create security challenges for businesses that may not otherwise exist. Additionally, for the retail businesses, Marathon, and potentially the City of Detroit, in its acting in concert with Marathon, are taking away basic property interests in a tortious fashion.

It is surprising to see Marathon taking this harsh approach towards people who have remained in business in the City while it is able to save tens if not hundreds of millions of dollars in taxes because it is the annointed developer in the area by the City of Detroit.

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The Salt Lake Tribune noted there is a recent legislative proposal which provides for a road right-of-way acquisition needed to transport oil and gas.

This process, allowing eminent domain for private development of minerals in Utah, takes the State in exactly the opposite direction of where Arizona was in its limitations on acquisition for mineral development. Possibly, it is all in the eye of the beholder.

Salt Lake Tribune

HB74, sponsored by Rep. Mike Noel, R-Kanab, would use eminent domain powers to aid mineral development by ensuring road access to well fields. It would require good-faith negotiations for the access before an agency or individual could file to take the land and pay for it.

The bill passed the House last week and on Thursday won a 4-0 recommendation from the Senate Government Operations and Political Subdivisions Committee.

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In a victory for landowners, John McFarland, a lawyer in Austin, Texas, noted the recent Texas Supreme Court case of Edwards Aquifer Authority v Day. The case is well worth reading. Edwards will be the cause of further litigation of water rights, with the potential for further protection for property owners.

Oil and Gas Lawyers Blog

The Texas Supreme Court issued its opinion today in Edwards Aquifer Authority v. Day, more than a year after it was argued and some thirteen years after the controversy began. It has been eagerly awaited as the court's ruling on whether a landowner has a "vested" right in groundwater under his/her land. The Court held that groundwater, like oil and gas, is "an exclusive and private property right ... inhering in virtue of [the landowner's] proprietorship of the land, and of which he may not be deprived without a taking of private property." The case is being heralded by property rights advocates as a victory for private property rights. The court's decision, in an opinion by Justice Nathan Hecht, was unanimous.

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In the last few weeks, this blogger has written of the need for a balance in the Keystone process. At one point, opponents of the proposed Keystone route claimed that Keystone would offer an alternate route. This blogger continues to look for the Keystone assurance. While searching out the issue, I happened upon the United States pipeline map prepared by Ventyx Global LLC in January, 2012. In this map, the Ogallala Aquifer was included in a side frame. The pipelines in the Aquifer were being illustrated in this side frame. 

One has to wonder what the environmental objections over the pipeline are really about. In light of the immense amount of pipeline infrastructure already sited in the Ogallala Aquifer for decades (without any destruction of the Aquifer), is there an environmental risk? The pipeline infrastructure puts one in mind of a bowl of spaghetti (no sauce).

The more serious question is whether the old pipelines are closely monitored in order to assure their continued safe use. Given what happened on the Kalamazoo River in Marshall, Michigan, one would expect the State and Federal regulatory agencies to strictly monitor pipeline security and safety.

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The Valley Bank in Wisconsin has filed an appeal in its eminent domain loss.

Apparently, the appeal may have been delinquent because it required only a 15 day time period.

Rules must be followed in the process. If the 15 day period is the correct amount of time allowed, the bank will lose an opportunity otherwise available.

WSAU News

The bank that owns the CenterPoint Marketplace Mall in Stevens Point is appealing a judge's ruling that allows the city to condemn the property. Valley Bank is asking the Wisconsin Court of Appeals to reverse a ruling by a Portage County judge earlier this month.

The bank had sued the city to block redevelopment plans for the property. The lower court ruling said the project can move forward.

Part of the ruling said that Valley Bank missed a 15-day deadline to file an appeal. The bank is citing a different section of state law, saying the deadline doesn't apply.

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The Pflugerville, Texas City Council passed a resolution to acquire a private water and wastewater provider.

The City Council should take a long look at what it was trying to purchase prior to expending sums that it never thought it was worth.

Statesman

The Pflugerville City Council unanimously approved two resolutions Tuesday night, one of which will allow the city to move forward with plans to acquire the jurisdiction of water and wastewater provider Windermere Utility Co.

If negotiations with Windermere's parent company aren't fruitful, the resolution will allow the city to seize the water and wastewater utility by eminent domain.

The other resolution allows City Manager Brandon Wade and the city attorney to work on behalf of the city to "protect, preserve, better manage and better regulate" water supplies, including by improving local government oversight, control and management of water and wastewater services for all Pflugerville water customers. The city is served by Windermere, the City of Pflugerville and Manville Water Supply Corp.

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In the AgAlert (California’s agriculture weekly), Justin Fredrickson appropriately notes the dangers in the imposition of flood plans on California agriculture.

It is interesting that so many of the recent articles relating to eminent domain relate to issues of Public Use and Just Compensation issues.

Ag Alert

Here are key issues for farmers and agricultural landowners to consider when commenting on the proposed flood plan:

-The importance of Central Valley agriculture and the potential impacts on the viability of farms and ranches;

-Private property rights;

-Impacts on particular parcels, farming operations, reclamation district areas, etc.;

-Impacts on livelihoods and businesses;

-Impacts on property values;

-The potential for eminent domain abuses;

-The importance of preserving the capacities of the flood bypasses by retaining lands in agriculture;

-The need for dedicated funding, permitting and legal enforcement to maintain the flood-protection functions of weirs and bypasses;

-Assurances associated with potential liabilities under the federal and state endangered species acts;

-Shifting greater burdens, pressures, risks and liabilities onto agricultural and rural areas when compared to urban and urbanizing areas.

For farmers and ranchers in the Central Valley, the impacts of the flood plan will be great and the stakes high. Please speak up now and make the concerns of Central Valley farmers and landowners known.

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As in so many other States, the very important Oklahoma Farm Bureau recognized that private property rights are of paramount import. For the farmers, it is not simply an issue of taking for public gain, but one involving all rights, for those above the ground to the minerals below.

Tulsa World

Private property rights: We support landowners' rights during and after oil, gas and seismic exploration. As we enter into a period of active energy exploration, it is important to protect natural resources as well as the property owners responsible for those resources.

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