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

The Illinois legislature has authorized "quick take" legislation in order to proceed with the Illinois/Indiana Expressway.

One might wonder how there is federal funding for the project. The quick response is that Illinois and Indiana have it together enough to understand that there will have to be some kind of private bond process for a toll road development to occur. Without the use of a toll road, the road simply would not be built and traffic congestion would continue to mount.

Times of Northwest Indiana

Quick-take eminent domain procedures have been established law in Indiana for decades. If a Hoosier property owner does not accept the state's initial offer for a piece of land within 30 days, a court will have the land appraised. If the property owner does not accept the appraised price, the state can take the land. The property owner can then head to court to argue about the price but not the taking of the land itself.

One "preferred route" planners revealed in February for the Illiana Expressway would have the 50-mile road start at I-65 just south of 153rd Avenue, northeast of Lowell in unincorporated Lake County. It would head almost straight west between Cedar Lake and Lowell to the Illinois state line and then to Interstate 55, near Wilmington, Ill.

Funding for the road has not been appropriated in either state, although state officials are hopeful private investors could be found to pay for it in exchange for the right to collect tolls.

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The Utilities Commission of Pennsylvania ordered the acquisition of the Clean Treatment Sewage Co. by Pennsylvania American Water.

One does not like to see smaller companies simply picked up by the bigger ones. However, if the water and sewage facility does not appropriately protect the public health and safety, it will quickly be condemned.

Quite possibly, clean treatment has a reasonable defense to why it went out of operation for an extended period. However, one can always expect an operation which does not appropriately operate to face early acquisition in order to protect the customers.

Gant Daily

The PUC has directed PAWC to include in its plan information on how the company plans to recover the costs of improvements to bring the CTSC wastewater system CTSC into compliance, in addition to other pertinent financial information, as well as whether the company plans to switch the Marcel Lake Estates customers from flat rates to metered rates.

Also as part of the acquisition, the commission directed CTSC to refund, without interest, availability charges actually paid by customers between March 2005, when this service was not available, and May 2009 when the Commission ordered CTSC to cease billing these customers. The commission further directed that any refunds be disbursed from the proceeds, if any, of the sale of the wastewater system.

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The New York State Senate’s attempt to limit foreign transmission lines in order to protect the electric industry in the State could be achieved by limiting eminent domain for the transmission company. The process which will wind its way through the legislative process will be a lobbyist’s dream.

WGRZ News

State senators want to ban attempts in New York to import power from Canada through a new transmission line, saying the state has enough of its own unused power.

Sen. George Maziarz, R-Newfane, Niagara County, said Tuesday that the Republican-led Senate plans to pass legislation that would block a proposal for the Champlain-Hudson Power Express transmission line. The proposal calls for a 1,000-megawatt transmission line to run from Canada to New York City.

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Enbridge Energy petitioned the Michigan Public Service Commission on April 16, 2012, in Case Number 17020, for authority to proceed through an eminent domain process in the future. This process requires Enbridge Energy to obtain an Order from the Court allowing the installation of the new pipe, takings of some new properties and expansion of previously existing easements. The expansion of the previously existing easements does contemplate eminent domain proceedings if settlements with owners are not reached.

At this time, Enbridge Energy does not have the power to condemn. It does have the power to threaten that it will stop any negotiation prior to condemning, but that is an unlikely position for Enbridge to take if it truly desires to go through a reasonable negotiation process.

The statute requires negotiation after the provision of a written appraisal or analysis. That has not been done for many of the property owners involved with the contemplated Enbridge Energy taking. The taking will affect properties in St. Clair, Macomb, Oakland, Ingham, Jackson, Calhoun, Kalamazoo, St. Joseph, Cass and Berrien Counties.

Electronic Case Filings

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Following the same basic legal principles as the Montana Supreme Court for the MATL, the Colorado Supreme Court read an authorization statute as not delegating the power of condemnation for the acquisition of a high-pressure petroleum pipeline in Colorado.

Statutes must be closely followed. A basic rule of law by all Courts throughout the United States is that there needs to be a clear implication if not a direct authorization granting the power of condemnation.

Eminent domain is strictly construed in every jurisdiction. It is perceived to be a harsh remedy. Courts in almost every jurisdiction have felt that private interest must be protected.

Wyoming Business Report

Amidst landowner safety concerns, the Colorado Supreme Court reversed an appeals court decision that would have granted a Wyoming pipeline company authority to condemn property to build a high-pressure petroleum pipeline to a Commerce City, Colo. refinery.

Pipeline authorities argue the decision will affect future investment in the state, and even the judges were strongly divided on the issue. Those in favor of overturning the appeals court decision said though pipelines are clearly listed for eminent domain, oil or petroleum were not expressly mentioned in the law as things those pipelines would convey. They say the Colorado legislature did not intend to include oil and gasoline pipelines in laws created to give railroads and utilities the rights to condemn the property of uncooperative landowners.

"None of these sections expressly authorizes a pipeline company to condemn property to construct, maintain or operate a petroleum pipeline," the majority opinion reads. "In fact, neither the word petroleum nor the word oil is found anywhere."

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With infrastructure upgrades and improvements likely to remain a legislative priority and a practical necessity for years to come, eminent domain proceedings will continue to emerge as a prominent issue that business owners will be forced to confront. Unavoidable conflicts of interest are often the result, as competing priorities of the private companies and government agencies that initiate these actions and the private property/business owners impacted by the proposed seizure come to a head.

CEO World Magazine

A partial taking, the seizure of one segment of an existing property or business operation, is the most common form of eminent domain. Typically intended to widen roads or make critical infrastructure upgrades, such an action can have a significant (and often under appreciated) impact on the value of a piece of property and, subsequently, on the bottom line of a business. Calculating the potential business effect of a seizure requires accurate accounting of all the functional and financial implications, many of which may not be immediately obvious. From the perspective of CEOs and other C-level executives, that calculation is further complicated by the costs and complications of engaging in complex—and potentially very public—litigation.

Because of the unique challenges and significant liabilities that can arise from the seizure of even a small piece of property, CEOs and business owners need to understand what to do (and what not to do) in the event that they are faced with this increasingly common phenomenon.
 

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An article written by then Law Review student, Adam Rubin, entitled “The Changing Face of Eminent Domain Law in Michigan..Amending Article X Section 2 of the Michigan Constitution” provides an excellent synopsis of the modification caused by the Poletown reversal of Hathcock. The Constitutional Amendment, in part, incorporated the decision of Hathcock, codifying it so that Hathcock could never be reversed as Poletown was.

This article offers interesting insight into the Constitutional Amendment process and the affect of the Amendment on the Public Use Provision of the Michigan Constitution.

The Changing Face of Eminent Domain Law in Michigan...

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After a lengthy dispute, Emmanuel Episcopal Church was given the go ahead that it could build an expansion 12 years ago. The City sought to condemn where the Church expanded into. The City has finally come to an agreement as to a fair exchange of property and payment of just compensation. This might look like a total victory for the Church, but, at best, the action will make the Church whole.

The lay leadership of the Church should be proud of its responsible decision making so that a reasonable result was finally arrived at.

PilotOnline.com

Church leaders have said that about 12 years ago, before renovating their parish hall and building a preschool, they asked city officials whether there were plans to work on the intersection. They said they were told no and proceeded with the $2 million school construction.

Two weeks after the church dedicated the school, the city announced plans to realign the intersection, including taking a half-acre of the church's property, church officials have said.

When the project is finished, the six-lane road will be 70 feet from the church's preschool. Church members called that proximity a threat to student safety.

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Enbridge is installing replacement pipeline for the vast majority of the line which created havoc in the Kalamazoo River. This is a good thing for the environment and a good thing for Enbridge. It may not be so good for the owners who have their properties torn apart with a de minimus compensation.
Enbridge is also acquiring another 50-mile right-of-way for installation of a replacement line in a different area from where it previously existed.

At this time, Enbridge has filed its Petition and the MPSC staff has now filed its response. Shortly, the filing will be sent to the affected owners of the properties; thereby allowing owners to challenge the project or any part of the project should they so choose.

This blog is not telling owners to challenge the project, nor is it telling the owners that they can challenge the project. Quite simply, owners should be aware they have the opportunity to review what Enbridge is doing and speak their individual minds about the issues involved.

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Enterprise Products Partners, LP continues in the construction of a 1,230 mile pipeline from Pennsylvania to Texas. The pipeline is cutting through rural Ohio.

The very capable firm of Braunstein and Goldman have provided advice to many of the neighbors along the route. As noted in the attached Newark Advocate article, the offers have already been forthcoming to some. There is a process in which to challenge the project itself at this time. If the challenges to the project fail, the owners are left only to obtain fair compensation. Goldman and Braunstein are two capable lawyers who likely would represent these owners well should they determine they want to fight the project and be treated fairly.

Newark Advocate

About 30 percent to 40 percent of residents along the route already have received offers, Goldman said. They should consult with an attorney before signing anything, Goldman said.

"It's going on right now," Goldman said of surveyors placing stakes in the area. "If you haven't been contacted, you will be, probably within 60 to 90 days. One of the worst things you can do is succumb to the initial pressure.

"They say, 'We're going to take your land, and we'll tell you how much it's worth.' You may think it is the greatest offer. You still ought to have somebody else look at it."

The attorneys told residents there is no charge to call for their preliminary opinions and assistance, and they bill property owners only after an offer is negotiated above the original offer.

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The “Land Grab” article in The Dallas Observer News on May 3, 2012 creates a much harsher picture of the eminent domain process than what was described in this blog earlier in the week. Rather than simply an expansion for a hospital use, thereby deemed something of a “public” nature and therefore Public Use in many states, Parkland Hospital is purchasing land in order to make a profit. One has to wonder whether this falls within the Public Use standard as contemplated by both the United States and State of Texas Constitutions.

The Dallas Observer News

Eminent domain, the principle that allows government to force a landowner to sell, is usually thought of as serving public purposes, like building new highways. But in the last two years Dallas County's public hospital district has been adventuring in a new version — eminent domain for profit.

Acting on a 2008 consultant's proposal, Parkland Memorial Hospital has been acquiring far more land than it requires for its new $1.3 billion hospital building and campus, some of it as far as half a mile from the construction site, which sits two and a half miles northeast of downtown on Harry Hines Boulevard.

Why? So when the value of the land goes up, Parkland can make money.

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Adam Rubin

Introduction

Eminent domain is not an enumerated power, but the original drafters sought to place limitations on the government’s use of the power through the constitution. Over the last half century case law has developed and attempted to define the constitutional limitations placed on the power of the government to take private property. The Michigan Supreme Court has issued leading decisions in the prominent cases of Poletown Neighborhood Council v. Detroit and County of Wayne v. Hathcock. The Poletown and Hathcock courts’ conflicting interpretations of article X, section 2 of the Michigan Constitution of 1963 emphasized the need for new legislation protecting Michigan property owners. The Hathcock opinion allowed for subsequent Michigan Supreme Court panels to reverse Hathcock and place property owners in a situation in which they have limited protection from governmental intrusion for suspect public use takings.  

The Changing Face of Eminent Domain

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In reading the New York Observer article, one wonders where Willets Point will go. On the one hand, owners are protected because their constitutional right to private property is maintained. On the other hand, the area clearly needs redevelopment. Yet, part of the reason the area needs redevelopment is because it maintains so many uses that cannot be maintained in other parts of the community.

The result of this is a much smaller project, with a number of owners who fought the condemnation allowed to continue in operation at their present locations. This may or may not be beneficial to the owners in the long run. Only time will tell.

New York Observer

The project had been broken up into three phases, a result both of the recession, which left developers leery to take on the project, but also the fact that there were still dozens of properties within the 62-acre site that the city did not yet own. Splitting the project into phases meant at least part of the redevelopment could proceed, arguably the most important part, the 20 acres closest to neighboring Citi Field. For the first phase, 680,000 square feet of retail and 400 units of housing were planned.

Another reason the initial plan was abandoned was that all the developers interested in the project—other contenders were Silverstein Properties, TDC, and Avalon Bay—were unsure of the ability to execute even such a modest proposal for one of the most complex sites in the city.

Part of the reason Willets Point became the Iron Triangle is the land is essentially a bog, lying a good six feet below the rest of the area. It would require significant excavation and landfill to bring it up to grade. Further complicating matters, centuries of industrial activity—remember the valley of ashes?—has left the ground heavily polluted. Any development would require significant remediation of the site before it could move forward.

These vexing issues caused all four of Willets Point finalists to propose plans outside the parameters of the phase 1 request for proposals. It appears the city took the proposal it found to be most acceptable and is proceeding with that.

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Many States allow hospitals to condemn. In these States, the hospitals are regulated by the State and expansions of hospitals are considered to be public uses. This emanates out of the historical context of most communities creating their own hospital systems. At this time many hospitals mostly non-profit, but private just the same have the power to condemn. As such, hospitals seek to control their destiny by assuring that the property around the hospital is used in conformity with the hospital use. However, private developers can construct the same medical office development as the hospital. This makes for frequent fights between adjacent landowners and hospital authorities.

Dallas Observer

Eminent domain, the principle that allows government to force a landowner to sell, is usually thought of as serving public purposes, like building new highways. But in the last two years Dallas County's public hospital district has been adventuring in a new version — eminent domain for profit.

Acting on a 2008 consultant's proposal, Parkland Memorial Hospital has been acquiring far more land than it requires for its new $1.3 billion hospital building and campus, some of it as far as half a mile from the construction site, which sits two and a half miles northeast of downtown on Harry Hines Boulevard.

Why? So when the value of the land goes up, Parkland can make money.

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Although the legislature passed a 2007 bill restricting eminent domain actions, the Hampton Boulevard redevelopment project was excluded by the legislature. This raises a number of questions about whether there can be different treatment of different properties. The retroactive nature of the legislation creates its own issues under the Virginia constitutional framework.

When a First Amendment issue of freedom of speech is raised, there is always an additional challenge to the community.

Fredericksburg

Eminent domain abuse occurs when a condemning authority takes private property and gives it to another entity for economic development. The General Assembly passed a bill to curtail this in Virginia in 2007; unfortunately, the Hampton Boulevard Redevelopment Project was grandfathered in.

In America, when governments exercise power wrongly, the First Amendment right to free speech allows the little guy to fight back. Except in Norfolk, where the city fathers know how to play hardball.

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ITC is required by MPSC to finish the project providing for transmission lines through the Thumb. Because of this requirement, ITC is moving forward to initiate appraisals in the remaining parts of Huron County and all of Sanilac County in order to complete the project in a timely fashion. The process requires ITC to make a good faith written offer of not less than an appraised value. At this time, ITC is purportedly offering about $5,700 per acre, in Sanilac, with only a portion of the per acre price being paid because the purported easement does not affect the remaining property interest. Clearly, there will be disputes about the damages at some future date. However, ITC is moving forward as should and would be expected.

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Joseph Viviano, MSU College of Law ‘12, has provided an outstanding analysis and PowerPoint presentation of the proposed amendment to the Virginia Constitution.

Any constitutional change, especially one so dear to the hearts of so many people as eminent domain, will present frustration, anger and confusion. Mr. Viviano has prepared an outstanding analysis of the positives and negatives of the amendment.

The analysis written by Mr. Viviano may be one of the few which offers some balance, because the public sentiment is so strongly in favor of the amendment and a sophisticated political bureaucracy is so opposed to the amendment that having a balance explaining all the various issues is difficult to find.

Eminent Domain in Virginia

Eminent Domain in Virginia

An Analysis of Virginia Senate Joint Resolution 3

Joseph J. Viviano

I.                   Introduction

Eminent domain constitutional reform has been underway in Virginia for the last two years.  The proposed constitutional amendment, Virginia Senate Joint Resolution 3, will greatly expand constitutional protections for Virginian landowners.  Many of these protections already exist in the Virginia Code.  However, property owners will receive two additional protections when their property is taken or damaged by the government: the right to lost profits and the right to compensation caused by a loss of access.  This Paper proceeds by first explaining the development of constitutional eminent domain law in Virginia to provide context for examining Senate Joint Resolution 3.   Next, the effect the proposed constitutional will have on current law in Virginia is analyzed.  Finally, this Paper concludes by rebutting arguments opposing Senate Joint Resolution 3.

II.                A Brief History of Eminent Domain in Virginia and Constitutional Reform

Absent a constitutional provision to the contrary, the State's power to take or control the use of private property for the public's benefit is absolute.  This is inherent in the meaning of “eminent domain,” which the Virginia Supreme Court has defined as:

the right on the part of the state to take or control the use of private property for the public benefit when public necessity demands it, is inherent in every sovereignty, and is inseparable from sovereignty, unless denied to it by its fundamental law.[1]

Eminent Domain and the Proposed Amendment to the Virginia Constitution (Powerpoint)

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The Detroit Free Press is finally appropriately discussing issues with the Bridge.

While the Detroit Free Press endorsed the DRIC bridge, now called the NITC Bridge, for over a year, only now does it recognize the discussion of the nasty political campaign paid for by the Detroit International Bridge Company should be dealt with in a direct fashion.

As long as the Bridge Company sticks to the facts, it will not see these types of articles and opinions as presented in the attached opinion of the Detroit Free Press. However, when the issues are confused or misrepresented, the personality and the attacks will be met with a hostile public and press reception.

Detroit Free Press

But against this rising consensus, Moroun has mounted an ever louder, more desperate propaganda campaign. He's now bankrolling a series of falsehood-ridden TV spots that accuse the new bridge's sponsors and the Canadian government of colluding against him and his plans to build his own new private bridge next to the 82-year-old Ambassador.

But a bridge is a road across water -- not much different from any highway or interchange. We entrust that kind of infrastructure to governments accountable to the public, not private companies beholden to stockholders. Moroun's losing courtroom battles with the state over the Gateway Project, which ties freeways into the Ambassador, reveal his difficulty in seeing beyond his own interests.

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The Fall River administration is seeking property for a potential future Indian resort casino site.

The community might find itself in a true conflict, bringing Kelo questions to Massachusetts. The issues of the highest and best use of the property may be the only way to stop the project.

Herald News

Fall River City Councilor Ray Mitchell’s proposal for the city to "consider taking" — by eminent domain powers — a 230-acre property that the Aquinnah Wampanoag Indian tribe is eyeing for a possible resort casino site represents the latest troubling example of governmental overreach.

In an apparent attempt to address the "NIMBY" concerns expressed by residents in the rural eastern corner of the city where the undeveloped parcel sits, Mitchell has proposed the land taking to preserve as a bioreserve.

Mitchell is clearly putting the cart well ahead of the horse. While neighbors and at least some city officials do not support the idea of a resort casino, the Aquinnah plan is far from reality, and the tribe is looking at several locations throughout Massachusetts for its casino. For the city to take such a large private property at a significant expense — Mitchell estimates the cost of $1 million — would be a shortsighted attempt to stop a perceived "problem" that does not yet exist.

While Mitchell expressed hope that the city would be able to pay for such a land taking through federal and state preservation grants, that is also a long shot. And how much would permanently taking developable land off the tax rolls cost the city over the years?

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Texas ranch owners must deal with the fact that the Sharyland Wind Line has received authorization from the Public Utility Commission of Texas to install a transmission line along an improved route. Dealing with the valuation process is always difficult, but will be especially comlicated when many valuable farms are severely interfered with.

The valuation issues offer great uncertainty, and the owners will have to go through a judicial process, retaining capable attorneys who will retain capable experts.

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