The Right To Be Paid For Control Of Property

The PLF Liberty Blog, one of the leading proponents of property rights, is providing an amicus brief on the interesting Stamper case.

The reality is that a market participant, meaning an owner, has a specific control of the utilization of a certain adjacent property which increases the value of the individual owner’s property. This is part of the highest and best use of the property. Just compensation is required for the condemnation of that owner’s individual control of the utilization of adjacent properties.


Liberty Blog

In this case, Richard Stamper and Donald Robinson own 9 acres of land zoned light industrial that the City of Perris wants for a road extension. In order to attract a Lowe’s distribution center, the City decided it needed to take 20% out of the middle of the Stamper/Robinson property for a new road. The City argued that because it was going to require the owners to dedicate the land before they could build, the City only had to pay for the land valued at its current, agricultural use. The city also left open the possibility that in the future, the Owners might have to dedicate even more land to the City if they want to develop the rest of their property.

The landowners challenged this action and after four years in the California Courts, their case has finally reached the California Supreme Court. Our amicus brief makes two major arguments:

1) Local governments can’t avoid paying fair market value for property they take via eminent domain merely by amending their general plans. If they could do that, then all governments would diminish property values in that way to acquire land more cheaply.

2) In accordance with PLF’s 1987 Supreme Court victory, Nollan v. California Coastal Commission, government bears the burden of showing that a property owner’s development impacts justify dedication requirements. Therefore, the government can’t merely impose a dedication on land it wants. It must show that if the land were developed privately, the dedication would be necessary to mitigate for the impacts of that development on public infrastructure.


Support For The Missoula Water Condemnation

The co-founder of Missoula Water Now provided a letter to the editor of The Missoulian. It is interesting that the letter broaches the subject of Carlyle “taking” money from the State. Realistically, the citizens of Missoula could organize their own private water company. In all likelihood, Carlyle’s biggest savings is that there is no longer an extra layer of management, filing and administrative work that would otherwise exist for an individual water company because Carlyle owns a larger number of water companies throughout the United States.


As a co-founder of Missoula Water Now, I actively organized opposition to the sale of Mountain Water to the Carlyle Group in 2011. I was not surprised to hear that the Carlyle Group did not follow through with its “good faith” agreement with the city. The Carlyle Group is an investment firm that exists to purchase undervalued assets, add limited improvements and re-sell them to highest bidders. It exists purely to maximize profit for investors and, in the case of the Missoula Valley aquifer, take money from Missoula residents every time we turn on the tap. It then sends its approximate $2 million in yearly profits out of Missoula. What should be our water system now enriches investors across the world – many of whom would not even know where Missoula is, and would not care about the welfare of Missoula’s citizens.

Although I wish the city had listened, during the short pre-sale comment window, to the more than 1,200 citizens who spoke out against the administration’s agreement of support for Carlyle’s purchase, I must now support the city’s eminent domain proceedings. The facts of the situation follow: Carlyle will eventually sell the water system to another company; it will get the highest price possible for it; and local control vs. international corporate control of water resources is a serious social and environmental issue, becoming more serious as the world’s water scarcity makes resource control that much more attractive an investment. If the Carlyle Group follows its usual pattern of flipping assets, it is logical to assume the citizens of Missoula will never be able to afford its purchase.


Missouri Clean Line Opposition Increases

Originally, many Missouri couunties supported the Clean Line approach of bringing power through the State. Subsequently, after a lack of support from the local utility companies and those directly affected by the Line, many of the Counties have now registered opposition to the proposed Line.

In all likelihood, the decision concerning the Line will finally be made through a State Regulatory Commission hearing or the involvement of FERC in the licensing process.


The Maneater

If Clean Line Energy was granted Public Utility status, a very dangerous precedent would be established. After that, virtually any company that proposes a transmission line through Missouri without any proven benefit and necessity will likely get approved and Missouri will be crisscrossed with high voltage lines.

Due to overwhelming public opposition and lack of merit, eight of the original 14 counties with proposed lines have now rescinded the support they gave to Clean Line prior to its announcement to the general public. The six counties that have not yet rescinded their support are Buchanan, Livingston, Carroll, Macon, Randolph and Shelby.

If you are on the proposed transmission line route, you probably have received a certified letter from Clean Line Energy. We advise that you do not allow them to coerce you into signing an easement agreement. They are not a Public Utility and have only just applied to become one about two weeks ago and the process could take several months. There is no advantage in signing an easement agreement now. We should all be vigilant to protect our elderly relatives and neighbors from being taken advantage of by conniving land agents. We strongly advise that no one ever signs anything regarding Clean Line Energy Partners' Grain Belt Express without an attorney.


Railroad Properties Revert To Owners

Under a recent U.S. Supreme Court decision, many railroad properties will now revert to the adjacent property owners. Most jurisdictions maintain an easement is simply that, an easement for a specific purpose. When the purpose for the easement terminates, the easement terminates.

The legal status of one of the area’s most prized natural treasures – the Illinois Prairie Path – is in question after a recent U.S. Supreme Court decision.

On March 10, the court ruled in the case of Marvin M. Brandt Revocable Trust et al. versus the United States. By an 8-to-1 vote, it determined that land given to now-defunct railroads under government easements must be returned to the original property owners....


The Problem With Assessed Value

Assessed value is often not related to fair market value. Frequently, communities under assess and use a higher multiplier in order to capture taxes. At other times, assessments are “capped”, thereby limiting increases in the assessed value.

To purchase a piece of property at assessed value, as is apparently being contemplated in a Portland, Maine, condemnation, is simply not fair. The property has other uses outside of being used as it is presently being used. Frequently, assessed value relates to the existing use only.

Reliance on assessed value in eminent domain cases is fraught with danger.

Portland Press Herald

Sprague said he wants Eimskip to succeed in Portland, so he supports the terminal expansion. He traveled to Iceland to assure Eimskip he would cooperate and later altered the design of his boatyard – after it had been approved and permitted by the city – to accommodate the transaction.

However, the state is offering less for the land than what it will cost for him to acquire additional land for his boatyard, Sprague said.

“My only issue is that I get paid fairly for the land they take,” he said. “They’d have to pay Portland rates for the land. And land on the Portland waterfront is expensive.”

The U.S. Constitution requires “just compensation” for taking property by eminent domain. The value is determined through an appraisal process that considers the fair market value of the property being taken and “severance damage,” or loss of value, to the remaining parcel, according to the MDOT’s “Landowner’s Guide to the Acquisition Process.”

According to the Portland Assessor’s Office, Sprague paid about $875,000 for the 15 acres he bought from Pan Am in 2012. No sale price is listed for the seven acres he bought from Unitil, and Sprague would not disclose the price.


TxDOT Challenged Lack Of Fairness

Some Departments of Transportation have a uniform policy. They do not buy property, no matter what the consequence or whether the properties will be developed in the very near future.

Texas jumped at purchasing certain properties, which raised the ire of the local commissioners.

Was this a conflict of interest?

The potential criminal investigation of a former Texas DOT official raises some important issues.

Most governmental agencies require a “cooling off” period from the time someone is employed by an agency and the time the former employee utilizes special knowledge obtained against the agency previously worked for.

Texas may have no rules on this potential for conflict of interest. But as can be noted from the attached article, serious questions are raised when this potential conflict arises.


Dallas News

TxDOT also used options in 2010 and 2011 when buying at least 19 acres from two Dallas real estate men who had bought and flipped the properties to the state for a large profit. TxDOT paid the men more than $20 million for the properties, which it said it needed to widen Interstate 35E in Dallas and Denton counties.

But some people including a Denton County commissioner have questioned whether the expensive I-35E land deals were in taxpayers’ best interest. Others grumbled that they weren’t given such offers.

Similarly, Bill Mote, a commercial real estate broker, questions why TxDOT bought land only from Hillwood for its future Loop 9 highway.

TxDOT says it needed to acquire the properties early to stop Hillwood from developing the land, which is adjacent to existing development. Buying it later would be more expensive, Hillwood said.

Will TxDOT review its procedures for early acquisition of right of way given these controversies? It’s unclear. We’ve asked the question and we’re still awaiting an answer.

Dallas News

In the TxDOT case, Bollman and Blackburn formed several business partnerships to buy properties along I-35E in Denton County and downtown Dallas since 2009. They then sold multiple parcels to TxDOT early in the state’s right-of-way acquisition process. The News identified at least 19 acres, using available public records.

Records show TxDOT paid Bollman and Blackburn at least $22.2 million over roughly a five-month period in 2011 for the Denton County parcels. It is not known how much the men originally paid for the property because real estate sales prices do not have to be disclosed in Texas.

The pair retained the services of Travis Henderson, a former TxDOT right-of-way official in the Dallas district who said he was hired to help them research real estate.

Henderson, 57, formed a consulting business after he retired from TxDOT in mid-2011. He told The News last year that the consulting work he has done for Bollman and Blackburn did not involve any of the projects he worked on as a TxDOT employee.

Since then, Henderson has declined to comment. But his attorney, Arnold Spencer, said last week that his client had no conflicts of interest based on his current and past work.


The Detroit Free Press Covers Private Water Issues

The recent Detroit Free Press article about conversion of the Detroit Public Water Department to a private entity reviews the potential that the system will be sold.

There seems to be an assumption that the Water Department is somehow “bloated” causing the overpricing of water. This may no longer be true. The number of employees is down over 60%. The political appointees are long gone.

The real issue with water is not simply one of cost per se but costs for clean water per se. The question is one of whether the City can obtain Clean Water Act funds from the Federal government in a less expensive and in a more timely fashion. Realistically, the private water companies, being effectively national in nature, may have a better understanding of how to process the applications and obtain the Federal funds which may be available.

Privatization is being sought in Detroit, while other Cities are seeking to acquire their privately owned water companies. This conflict raises questions about the best way to proceed.

Frankly, there is no simple answer.

Detroit Free Press

The world of private water management is dominated by a handful of global companies with billions in annual revenue that dwarf Detroit’s annual budget.

The industry also is poised for growth in the U.S. because municipalities are increasingly dealing with strained budgets and are looking for ways to save money.

Across the U.S., about 15% of water systems are investor-owned or are privately operated systems, said Curtis of the American Water Works Association. However, a large number of those privately operated systems are small housing subdivisions or golf courses and few are large metropolitan cities. About 5% of municipal waste water systems are publicly operated.

“If (Detroit’s) process moves past the request for information, it could be the largest such outsourcing deal in the history of the U.S. water sector,” said Global Water Intelligence, a trade publication that writes about the industry.


Willets Point Brawl Continues

The Willets Point property owners, mostly low-end repair shops and auto collision facilities are fighting for their economic lives. The problems of relocation are infinite. The owners see no reason why a shopping center is a better use than these facilities which provide them an opportunity to exist and work. The problem is that the shopping center will have far more employees, and the tax dollars earned by the sales will offer the community an opportunity to obtain tax funds otherwise arguably not available. Yet, the people who will be shopping at a proposed Willets Point shopping center very likely would have shopped in a nearby commercial district in their own neighborhoods.

New York Daily News

Today, the threat of redevelopment and eminent domain seizure has already driven out many of the businesses that once thrived in the Willets Point neighborhood. Few of the displaced businesses have successfully relocated.

For this reason 33 owners of Willets Point businesses filed suit in February 2014 against the EDC, Sterling Equities, The Related Companies, and the Queens Development Group. The lawsuit alleges that “there was no lawful relocation plan for current commercial tenants,” that “the relocation assistance has been ineffective,” and that the city’s failure to implement a legitimate relocation plan is a violation of federal law.

Eliminating taxpayer support for a billionaire’s boondoggle like the Willets Point Project will not make much of a dent in the level of extreme inequality in New York City. But it would make a statement that it is time to take a stand and help the working poor defend against the depredations of the rich.


The Wind Energy Balancing Act

An Iowa article has presented an interesting topic, describing the benefits of the available non-fossil fuel source of wind, but also the harm caused by the extension of transmission lines through farms in States near Kansas. In the related St. Louis Post-Dispatch article, the notion that the transmission company “might” use eminent domain offers humor. Quite clearly eminent domain will be required unless every owner along the path is satisfied.

Iowa Farmer Today

The idea is supported by environmental groups claiming it is an opportunity to move forward with an energy source that could reduce the nation’s reliance on fossil fuels and cut air pollution. Clean Line has four other transmission line projects in the works in the West and Midwest.

All five still require regulatory approval. If all goes right, the Kansas-to-Indiana line — called the Green Belt Express Clean Line — could be operational by 2018, said Mark Lawlor, director of development for Clean Line.

Clean Line says the project will be an economic boon, with all four states seeing new jobs for construction and local companies providing things like parts and concrete. Lawlor said consumers would benefit, too, from lower electricity costs.

Kansas figures to benefit the most. Clean Line projects that more than $7 billion of new wind projects will be needed to meet demand created by the line, potentially creating thousands of jobs in Kansas and making the state a hub of wind energy.

St. Louis Post Dispatch

Its proposal has stirred controversy among some farmers in the state, who worry that the entity might use eminent domain to acquire land for the route. Some local governments fearful the route would run through their boundaries sent letters to the PSC opposing the project, citing residents' concerns over the use of eminent domain to acquire property.

A hearing in front of the PSC has not been set, but Grain Belt in January informed the regulators it would ask for authority to build the transmission lines.


The Coos Bay Challenge Continues

The U.S. Department of Energy has provided a conditional approval for the Coos Bay project, which will now allow the exportation of natural gas for years into the future. The locals continue to fight, but it is clear that the economic pressures will allow the exporters to prevail.

Mail Tribune

In the meantime, "my clients are doing a variety of things: educating lawmakers both at the state and the federal level, they have been engaging the state and federal regulatory agencies, outreaching to members of the public and conducting public education," Brown said.

Violations of landowners' rights, proposed and potential environmental impacts of the facility and pipeline and a staunch disagreement with the practices of the industry backing the project are overlapping concerns of those opposing the development at Jordan Cove.

Many of the groups also argue that there are flaws in the federal economic research pushing Jordan Cove and similar projects forward, and that it is based too much on a recent boom in the domestic supply of gas.

"If you happen to be concerned about the impact of fracking and impact of methane emissions relative to the climate, well the more domestic gas you rush to export the more of this you get. ... I believe that it's wrong, and I believe that it is a fight worth fighting and a fight that we'll continue," said 70-year-old Bob Barker.


Federal Court Of Appeals Buys Deference to FERC

In a recent challenge to a proposed pipeline eminent domain proceeding, the U.S. 8th Circuit Court of Appeals affirmed precedent. The FERC certificate which a City attacked, may only be challenged in front of the Federal Energy Regulatory Commission, not through the judicial process. Any appeal to a FERC decision needs to be properly appealed from the FERC decision, not in a later eminent domain proceeding.

Petroleum News

The Smiths challenged the FERC certificate in the condemnation action. The federal district court and the court of appeals refused to allow the collateral attack on the administrative certificate. While indicating that it would not rule on the issue, the court of appeals did note that the Smiths received notice of the FERC application. “Perhaps the Smiths, as an elderly couple in rural North Dakota, should not be charged with notice of the Federal Register. But their counsel in the state court proceeding to enter and survey their land (who also represents the Smiths in this proceeding) can claim no such lack of notice,” wrote the appellate court.

The Smiths’ attempt to challenge the procedure used by Alliance in the condemnation action also was unsuccessful. North Dakota state law provides for a jury trial to determine the value of condemned land; however, the court of appeals found that the federal rules superseded state law.


Missoula Montana Is All Wet With Water Acquisition

Attached is a copy of the Complaint filed by the City of Missoula in condemn its privately-owned public utility water company owned by Mountain Water Company.

One would think that the issue of an eminent domain acquisition relates to the size of the Carlyle Group rather than the legal aspects of Montana law. If the citizens of the City of Missoula read the allegations in the Complaint, they will wonder whether the basis to acquire privately owned property is premised upon the wealth of the owner rather than the need for the property.

If investors and privately-owned public utilities read the Complaint, Montana communities may find themselves with no private investors who will fund infrastructure improvements in the State.

The author of this blog discussed his thoughts on the matter when interviewed by NBC Montana.

Eminent Domain Missoula Complaint


Forced Pooling Has A New Meaning

“Unitization” has been legislated in many States. These States generally include a specific pooling area.

Most recently, because of the availability of fracking and horizontal drilling, the “pool” has expanded dramatically from what used to be 40-acre units.

If the statute has historically been deemed constitutional, it is likely that the changing technology may provide for forced pooling if the statute originally contemplated the activity.


E & E Publishing

Forced, or compulsory, pooling is common in oil and gas producing states. Typically, it happens when a driller already has leases with a group of property owners but can't contact or reach an agreement with a minority of owners. The state has the power to allow the driller to produce oil or gas from beneath the holdout's land, although there's typically a hearing to make sure that the owner's rights are protected and states generally have a mechanism to make sure the owner is paid.

Proponents argue that forced pooling allows for drilling to be done in the most efficient manner with the fewest well sites and the least disturbance to the surface. It also prevents a single landowner from holding up drilling on surrounding property.

As the shale boom brought drilling to new areas, the idea became more controversial. Shale drilling, with its long horizontal wells, requires larger units, so more owners face the prospect of pooling. Some fields, like Pennsylvania's Marcellus Shale, are in areas that don't have a history of drilling, and landowners sometimes object to it on moral and environmental grounds.

Those objections led Pennsylvania to drop the idea of forced pooling provision in Act 13, the law that governs production in the Marcellus Shale.


Damages To The Remainder Must Be Considered In Easement Takings

The controversial Peregrine pipeline directly affected a substantial property. Eagle Ford Land Partners have been fighting the acquisition because of substantial interference with the use of the remainder.

An appraisal requires a determination of whether the remainder is affected. Here, Peregrine simply missed the valuation, and in a very substantial way.



Attorneys for Eagle Ford Land Partners, based in Dallas, argued that the landowner should be compensated for the reduced development value of surrounding land, not just the acreage taken by the easement, according to court records. The case entails about 400 acres at the intersection of Texas 360 and U.S. 287, said Luke Ellis, an Austin attorney for Eagle Ford Land Partners.

While there are natural gas wells on the property, Peregrine’s pipeline does not serve them, Ellis said.

An attorney representing Peregrine could not be reached for comment, but the company has indicated it will appeal, d Ellis said.

According to court records, Peregrine sought a 6,400-foot-long easement across a parcel owned by Eagle Ford Land, which Ellis said is a partnership of the heirs of the original landowner. When the two sides could not agree on an easement value, Peregrine condemned the 20-foot-wide strip of land under eminent domain.


Energy Tax Break And Eminent Domain Powers For Michigan Oil Companies

The recent legislation allowing the transport and use of carbon dioxide for fracking raises a number of those persistent issues complained of by so many individual citizens. First, the pipelines will have a power to acquire land. This will create tremendous anger for those who have the carbon dioxide pipeline entering their properties. At the same time, a legislator was correct when he stated that “this is a great economic boom for the State”.

The safety issues are paramount. Hopefully the State will initiate appropriate protections for the public while allowing the economic activity in what has been a “slow growth” State to warm up at least a little bit.


Shale Daily

"The bottom line is that this is about energy security, environmental protection and Michigan's economy," said state Rep. Aric Nesbitt (R-Lawton). CO2 reused in deep extraction projects could be stored underground rather than released into the atmosphere, he told his colleagues on the House floor Wednesday.

Another incentive for producers is a bill to allow operators to condemn property through eminent domain to secure rights of way for oil, gas or CO2 pipelines. Although it passed both houses, the bill received some blow back by Republicans and Democrats concerned that operators would be able to ram through pipeline projects with little regard for property owners.


M Live


Siting Pipelines in Colorado

A technical fix to what oil companies believe is an error, and property owners thought was the legislative intent has created additional questions.

The legislation allowing eminent domain for pipeline construction does not include a clause providing for a siting process. Most jurisdictions require the State Public Service Commission or Public Utilities Commission to act as the arbiter of pipeline location. Colorado does not as yet provide this common protection to property owners as part of this recent legislative proposal.

Journal-Advocate Local News

Changes to SB 93 will likely touch on the local control issue. During committee testimony, member Rep. Mike McLachlan (D-Durango) noted that his home county, LaPlata, has an extensive review process for pipeline siting. Adams County Commissioner Charles "Chaz" Tedesco, whose board does not support SB 93, testified that his county also has a review process for pipeline siting.

But the state's number one county for oil and gas production, Weld County, has no approval process, and that's partly what led to the lawsuit and the 2012 Colorado Supreme Court decision that decided that petroleum pipeline companies did not have eminent domain rights.

Supporters of SB 93 continue to maintain that the bill would not grant new condemnation authority; that for more than 100 years petroleum pipeline companies have had the right to condemn and take land when they can't come to an agreement with landowners over pipeline rights-of-way.

May told the committee that SB 93 is a "technical fix," necessary because the Colorado Supreme Court "eliminated more than 100 years of established law." Under SB 93, petroleum pipeline companies must comply with all laws and regulations, although later witnesses pointed out that there are no laws or regulations, either state or federal, regarding the siting of petroleum pipelines.


The Taking of Water Has Value

A North Carolina farmer utilizes water for his irrigation system. Simply acquiring by eminent domain the mineral resource does not take into consideration the marketability of the resource to the “buyer” that needs the water.

Hopefully, for the citizens of Laurinburg, a bond has been provided assuring the community that its residents do not have to pay for the development of one property in an industrial park.

According to background provided by Yarborough in his Feb. 24 injunction request, the city in July approached Maynor and asked him for permission to access his property in order to drill three wells — one located east of and adjacent to U.S. 401 (Wagram Road), one west and adjacent to U.S. 401 and the other north and adjacent to Log Cabin Road — to “determine suitable locations for raw water wells to provide water to a manufacturing facility being built off U.S. 401 bypass near Heck Norton Road.”

Maynor says he was told the water would be tested to see if it met the standards of FCC America LLC, currently the only facility at the U.S. 401 Industrial Park, and that if it did, the two parties would agree on a suitable price. Maynor, who at the time was already thinking about testing for the potential installation of an irrigation system, welcomed the city onto his property.

“My feelings were, if they offer something reasonable then I’ll scrap my plans to irrigate,” he said, “and if they didn’t offer a reasonable price I would go ahead with my plans to irrigate.”

Maynor said the wells were found to be capable of producing some 600 gallons of water per minute each, a total of more than 315 million gallons per year that would be pumped into the city’s system and then sold.


An Article About How To Con A Community

Realistically, energy development will expand. There is always opposition to change, some with merit and some without. However the article in the Oil and Gas Financial Journal apparently written by a PR company is somewhat bothersome, because it leaves the individual decision maker, being us as citizens irrelevant and at the bottom of the heap.

Oil & Gas Financial Journal

Building community support
When reaching out for community support, you will find a wide range of people – from those who are unaware, all the way up to those who are committed to support you. We call this an Advocacy Pyramid – everyone is somewhere along a Value and Quantity scale. The higher up the pyramid, the more valuable they are to your campaign; the wider the category, the more people are in that pool. Moving people up the scale from unaware to vocal support is how you get to "Yes."

Where are the NIMBYs? Not in this pyramid. Trying to convert opponents is a waste of time and resources. You can't ignore them, but your campaign is much better served focusing on people you can convert.

Your campaign to counter pipeline or fracking opposition should have two goals: move the unawares up to vocal advocates, and turn them out. Some unaware or undecided people do not care enough to pick a side. Those who are receptive need your help – give them information and persuade them. Approach this strategically as you would with any sensitive and controversial issue facing your company – do your due diligence, recognize and acknowledge the local concerns and rumors, such as eminent domain and local job creation, and tackle all misinformation in a straightforward manner.

Spend little energy per person on the bottom of the pyramid (use mass communications, low-context communications) and more energy for people higher up – face-to-face conversations, high-context communications.

This brings us to the Virtuous Cycle – the more information they get, the more they can effect change, and this is how people can be persuaded to become more openly supportive.

Aim to control the debate and drive the message. Flood the target community with your message, pumping traffic into the lower half of the pyramid. You can also run an initial voter ID program to identify as many possible and actual supporters as you can.

Vocal advocates should be engaged regularly; leveraging this group and guiding them to support and motivate, encouraging and empowering supporters, all further spread the message. At the action step – a city council hearing or a vote – they help carry the message.

The Advocacy Pyramid requires much effort and one-on-one interaction to build grassroots support for a project potentially as unpopular as pipelines or hydraulic fracturing. Most people who support a project do not feel strongly enough about it to publicly stand up against a neighbor. It is not a simple matter to organize public support when some citizens are adamantly opposed. In the case of a pipeline or energy exploration, it is essential. Failure to do so ensures defeat.

The Problems Of Language In A Statute

Pipeline companies have a problem in Colorado. The statute has a comma in the wrong place. Legislation is required to modify the judicial determination of the intent of the statute if the statute was indeed written imperfectly.

This is a common problem in many States. Statutes are written in a haphazard fashion, barely intelligible, and sometimes not necessarily interpreted in the fashion approved by the Legislature, yet following what the legislative language states.

Michigan has a similar problem with its eminent domain statute providing the power of condemnation for oil company pipelines.

This is always a problem, and can only be rectified by appropriate legislative delegations!


The Durango Herald

To back up the decision, it cited an oddly punctuated list in state statutes that left the meaning of the law unclear.

The Supreme Court decision had little effect in Southwest Colorado because almost all of the state’s oil production is on the Front Range.

But a prominent gas-and-oil attorney from Durango is worried that the Legislature, in the course of fixing legal problems that led to the Supreme Court decision, might be about to expand the ability of private companies to condemn land.

“The major problem with the bill is the definition of pipeline company is overbroad, and it gives apparently unintended new rights to oil and gas operators in La Plata County and elsewhere that had not had eminent-domain authority previously,” said Bob Miller, a Durango lawyer who has handled numerous energy cases.


Does California Allow Entry Prior To Acquisition?

The California Appellate decision barred government entry to determine whether property is viable for water tunnels. This is an issue dealt with in many jurisdictions.

If California initiated legislation which allowed entry prior to formal acquisition, it would likely be upheld by the courts. Many jurisdictions have allowed access to property, with concurrent compensation, if damage occurs. Surprisingly, California apparently has not initiated legislation allowing this type of conduct.


Liberty Blog

But prior to condemning property and beginning the project, the State seeks to conduct certain environmental and geological studies on the subject private land. It specifically wants to bore holes on certain land, take soil samples, trap animals, and generally have a right to access to the lands for several years of investigation.

Rightfully concerned that some property owners would balk if state agents simply showed up on their land, the State sought an order from a state court authorizing its agents to enter tens of thousands of acres of private Delta properties (by vehicle, boat or on foot) to carry out the tests. In so doing, the State asserted that no compensation was due the effected property owners because any pre-project property testing was non-compensable ”pre-condemnation” activity. More than 150 Delta property owners objected; they claimed in court that the State’s entry onto their lands and testing activities was itself a compensable taking that the State could carry out only after a jury awarded compensation in an eminent domain proceeding.


Will Fracking Bans Work Without Payments Of Just Compensation?

When the citizens of a City desire to have “no fracking” bans within their community, one has to wonder whether this is a police power limitation or a taking of a property interest.

Fracking will raise its own issues for years and years into the future when local communities pass initiatives to stop fracking within the community limits!

The Texas Tribune

A Denton group says it has made gains in its efforts to ban hydraulic fracturing within city limits.

The organization, called the Denton Drilling Awareness Group, announced Friday that more than 596 Denton residents had signed a petition to ban hydraulic fracturing— enough to put the proposal on the November ballot.


From A Bridge To Nowhere To A Bridge To Everywhere

For years, we laughed about the bridge that served about 2,000 people in Alaska, one for which we were about to spend literally hundreds of millions of dollars.

Now, rather than have a bridge to an Aleutian island, we could have main traffic access being made available between the United States and Canada. Yet, we can do nothing!


Detroit Free Press

WASHINGTON — What Buffalo needed in 2011 to move ahead with a decade-long plan to twin the Peace Bridge into Canada was a financial commitment for $250 million from the U.S. government to pay for a bigger, better customs plaza on the New York side.

It never came.

In Port Huron, a customs plaza expansion project to reduce backups at the Blue Water Bridge began in 2002. More than 100 homes and commercial properties were demolished to make way. But as of last year, the federal government said it didn’t have the $145 million needed to finish the work — and officials there continue to wait.


Rockland County Water Fight

The Town of Ramapo is rebelling against substantial United Water rate increases.

Before the Town jumps at acquiring the facility, it should take a long look at whether the community can really run the system any better. Water regulations have become increasingly difficult every day, making the process more expensive to administer the water.

Sloatsburg Village

Supervisor St. Lawrence has been an outspoken about United Water’s proposed 28% rate increase related to the Haverstraw Desalination Plant, even vigorously testifying recently in Albany on the issue.

“Currently we are fighting to stop United Water Suez’s proposed 28% rate increase, 133 million dollar desalination plant and 56.8 million dollar charge to ratepayers for monies it has spent already on its proposed desal plant, which may never be built,” St. Lawrence said.

“It’s time to jettison United Water (New York) and do this on our own,” St. Lawrence said in a February interview with Our Town. “We can do this cheaper, we can do it better.” St. Lawrence chairs the Rockland County Solid Waste Management Authority, which was created in 1994 to manage the county’s solid waste and recycling processing and disposal.

Much of Rockland County receives its water supply from the aquifer along the Ramapo and Mahwah River valleys, with some ten key water wells located in Torne Valley adjacent to the Ramapo River and extending into Hillburn, NY. Additionally, Suffern has its four water wells located along the Ramapo River.

The Our Town article covers in detail various pros and cons of establishing a Water Authority, one of which would be the up front cost of the infrastructure. St. Lawrence said that Ramapo could start its own water company and take over the United Water infrastructure, through eminent domain, if need be — serious words, indeed.


Is Auto Dealership In Battle Because Portsmouth Wants To Develop The Property?

When one reads about the sewer routed under an auto dealership in Portsmouth, the reader must wonder whether the problem is being created by the fact that the City desires to control the redevelopment in the area not allowing the existing owner to develop as the owner deems appropriate. Simply trying to control development certainly is not what was conceived to be a “public use” by the Constitutional scrivener.

Seacoast Online

Boyle notified the City Council in November that the city has been trespassing on his land since Feb. 7, 2008, when his lawyer told city officials that Boyle was revoking "all prior permissions for the sewer line."

In Boyle's November notice to the city, he called his ultimatum "regretful," while saying he offered to grant the city an easement at no cost "if it worked with me on development of my property."

Boyle has also asserted that the sewer line and related berms have caused his dealership property to flood. The judge's Thursday decision states that if the flooding is the result of the city trespassing, Boyle will be entitled to damages for that as well.

The judge said whether the flooding is naturally occurring, or caused by the sewer line and berms, will be determined during a future jury trial.

Last August, the Superior Court approved a separate but related agreement between Toyota of Portsmouth and the state Department of Environmental Protection, allowing for further development of Boyle's auto dealership property, over the city's objections.


Being Acquired In New York Is Cause For Crying

People who have held on to property in East Harlem, hoping to move forward with an increasingly affluent City face redevelopment by the City through its chosen developers. All these people get stuck with are the taxes!

New York Daily News

In East Harlem, where land values are on the rise, that could mean hefty checks for the landlords, according to real estate groups familiar with the area.

“Development sites are now being shopped at well over $100 per square-foot,” said Faith Hope Consolo, the head of Douglas Elliman’s Retail Group. “Two or three years ago, these sites could have been acquired for half the price.”

Bae, who joined with the other owners in a failed challenge against the blight declaration in 2010, might have benefitted from the appreciating property values if his hands hadn’t been tied for so long. He says he’s struggling to keep up with property taxes that have jumped 20-fold to $60,000 a year per parcel. He says he expects the bill to hit $70,000 next year.

“I’m borrowing money to pay for my property taxes,” said Bae, who is planning another legal battle. “You have no idea of the severity of the squeeze they’re putting on me.”


Meadowbrook Golf Club Fights Value

In the condemnation of the Meadowbrook Golf Club, in Phoenixville, Pennsylvania, the owners have given up on challenging the acquisition. However, the value is still in dispute.

On the one hand it is incredible that there are so many golf course condemnations. On the other hand, what location would be easier to acquire for development, redevelopment or a public infrastructure purpose?

Projections put forth by the district’s administration show that significant growth is expected in the elementary school levels with several schools already over capacity and using temporary modular classrooms. The most recent projections, which painted a more dire picture than ones even a year ago, showed that the total number of available elementary school seats across the district will be exceeded by the next school year.

In the hearing Friday, Bellwoar and Hagner agreed that the issues for Cody to decide come down to whether the district provided proper notice of the condemnation to Cy Group; whether it had provided the proper filing of the notice to the public and specified where it could be viewed; and, most substantively, whether the board’s action was excessive.

Hagner, in brief comments to Cody, said his clients would argue that the board did not do enough investigation to determine whether condemning the golf course acreage provided the best course for the school construction. Although he acknowledged that the board had the authority to condemn the property, it was also responsible for doing so in an “intelligent” manner, he said.

“Other lands more suitable for (the board’s) necessary needs are available for taking or purchase and less costly to the tax payers,” Hagner wrote in Cy Group’s preliminary objections.


Bolingbrook Water Fails To Follow Procedure and Pays

As this blog writes about all too often, a failure to follow procedure serves as a bar to an agency seeking to acquire property.

The Bolingbrook consortium of five communities did not obtain the appropriate support of resolution from each community. Therefore, the case was dismissed. This will only cause a temporary delay, but identifies a mistake in the confused pattern of the acquisition process. One has to wonder whether the communities have any sense of the value of the water company the communities are seeking to condemn.

Chicago Tribune

"The Agency is committed to accomplishing the acquisition in the most timely, fair and efficient manner possible," the agency statement reads. "The Agency remains confident that it will ultimately prevail."

Eminent domain cases, where a public body takes control of private assets, are often long and pricey processes.

Agency attorneys said last year that the case would not get to a judge until late this year or early 2015.

Bolingbrook Mayor Roger Claar and the other town leaders have decried the high price of private water in their towns, and say that taking over the Bedford Park line will lower residents' bills.

The water agency's statement this week chides American Lake Water Company, which owns and operates the Bedford Park line, for creating "confusion regarding costs and charges."

While American Lake Water runs the pipeline, its sister company, Illinois American Water, runs the distribution systems to varying degrees in Bolingbrook and the other agency towns.

Water company officials have pointed out that the Bedford Park line service charge is a small part of a customer's bill, and that this taxpayer-funded eminent domain action by the water agency won't put a dent in resident's water bill.


Privileged Immunities Clause Of The Fourteenth Amendment

In an interesting blog commentary, Ilya Somin raises the issue of whether the Privileges and Immunities Clause of the 14th Amendment was intended to include the incorporation of the 14th Amendment application to all State activities or if the limitation on Federal power existed prior to initiation of the Amendment.

This is a perplexing question. On the one hand, why would the Privilege and Immunities Clause be included at all if not intended to be applicable. On the other hand, the scriveners of the 14th Amendment may have well intended that the Amendment only apply to acts within the State itself as to its affects on non-resident citizens.

Below is a Law Review article written by this office about the intent of the 14th Amendment.

The Washington Post

The disagreement between Ramsey and myself is a relatively narrow one. He recognizes that my conclusion would be correct if the Fourteenth Amendment actually “incorporates” the text of the Bill of Rights against the states, as opposed to merely “deeply rooted practices” of state governments. Most originalist scholars today believe that the Privileges or Immunities Clause of the Fourteenth Amendment applies all or nearly all of the Bill of Rights against the states, following the pioneering work of Akhil Amar and Michael Kent Curtis on this issue. While some originalists believe that incorporation was “selective” (potentially leaving out a few parts of the Bill of Rights which were not considered important enough to warrant incorporation), virtually all scholars who endorse incorporation at all conclude that the Takings Clause of the Fifth Amendment was one of the rights that was in fact incorporated. As Amar, among others, point out, it was among the rights specifically mentioned by leading framers of the Amendment, such as John Bingham.


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Is Use Of A Stream A Taking?

In a recent opinion published in The Salt Lake City Tribune, Randy Parker has taken a position that the intrusion in a stream is an invasion of a property right.

As one closely views almost every State Constitution, it is noted that riparian rights are delegated and limited by the Constitutional provisions. It is likely that the right to fish is controlled by the jurisdiction’s constitutional precedent. At the same time, entry upon property itself from the navigable stream would likely be deemed a trespass.

The Salt Lake City Tribune

The Public Waters Access Act provides pieces of the Supreme Court’s Conatser decision and 2010’s HB80 that Rep. Lorie Fowlke offered as a compromise. What both the Conatser decision and HB80 had in common was they took or devalued a right in property ownership protected under the Utah Constitution without "just compensation."

The court and anglers continue to ignore the fact that for generations, property owners have paid and continue to pay taxes on private property these streams cross. These rights are long established within legal deeds and property descriptions. Article I Section 22 of the Utah Constitution says, "Private property shall not be taken or damaged for public use without just compensation."

HB37 under the Utah Constitution is nothing less than a taking.

The Utah Legislature in 2010 discussed and debated the issue, asking the question "Is there any level of intrusion into property rights justifiable for recreation interests?" The answer came back that any intrusion is a diminishment or damage to the fundamental right to property.


Delay Creates Harm

The owner of the oldest hotel adjacent to Disney Land proposes building a new hotel at the site. Yet, the community may desire to acquire his property.

Being left in “limbo” will create havoc with the owner’s activities. After all, the opportunity to fund the project may dissipate, interest rates may climb and a new competitor may enter the market before this hotel can be redeveloped.

One of the greatest harms that an individual may suffer other than simply the receipt of an unfavorable offer is the loss of opportunity which inevitably occurs when communities delay their project plans.

Voice of OC

Fast forward more than 50 years and Scalzo’s grandson, Paul Durand, says his "family legacy" is under attack by the push for a $319-million streetcar project conceived primarily for the benefit of Disneyland.

The Park Vue Inn, along with an IHOP and Cold Stone Creamery also owned by Durand’s family, could be subject to an eminent domain action the city claims is needed for the streetcar system to become reality. City officials have been less than forthcoming regarding the specifics of their plans, Durand said.

“They’re being secretive and deliberate, and it’s harming me,” Durand said. “If it’s going to come through my property, tell me, because I’m trying to run a business here.”

He added that the eminent domain threat is also affecting his plans for another hotel project on the property.

Anaheim Public Works Director Natalie Meeks said the project isn’t far enough along to give Durand more definitive answers. An environmental impact report, scheduled to be released in December, is supposed to identify the preferred route and therefore clarify which properties would be taken, she said.


East Harlem Property Owners Get Burned

While waiting 13 years to be acquired, property values have skyrocketed. At the same time, property owners were debilitated from doing anything with their properties while facing the pending eminent domain proceeding. Hopefully, the courts will recognize that the affect of the public activity must be taken into consideration.

The Real Deal

The city’s Planning Commission in 2008 approved the acquisition of property on which the 1.7 million-square-foot project would rise. Upon completion, the center was originally imagined to include affordable housing, retail and cultural space. But the developers have since run into problems.

General Growth, one of the project’s developers, went bankrupt, and Archstone was acquired by Equity and Avalon Bay in late 2012. Meanwhile, property taxes skyrocketed during the delay, and a blight designation — in place since the spot was classified as an Urban Renewal Area in 1968 — thwarted property owners’ ability to sell.

Feb. 16 would have marked the city’s deadline for using eminent domain in the area. But officials at the Economic Development

Corporation launched the process Feb. 12, saying the tool would be used “only as a last resort.” The EDC hopes instead to negotiate sales agreements with property owners, a spokesperson told DNAinfo.

“We have already begun the negotiation process with the remaining tenants, and would vastly prefer to reach a deal with them,” an EDC spokesman told the news site.


When Public Use And Economic Benefit Collide

Oshtemo Township, outside Kalamazoo, Michigan, will shortly be facing an issue that will be dealt with down the road in our judicial system. Can communities simply determine that they have new economic districts that should be developed, and then determine that taxes may be captured so acquisition may occur in order to increase the economic viability of a community?

In this case it seems that it is sidewalks that the Township desires to develop. Sidewalks make the community warmer, friendlier and potentially more viable. In all likelihood, the sidewalk itself was to be considered a public use, and acquisitions whether objected to or not will probably be upheld under such circumstances.

Oshtemo Township is considering the establishment of a Michigan Corridor Improvement Authority, an entity intended to help communities fund improvements in business corridors outside of their main commercial areas. Among other things, the authority has the power to hire an improvement director and issue revenue bonds.

It can also work to create a Tax Increment Financing district, a designated area in which taxes generated by new businesses that come into the area, or that are generated from capital improvement projects in the area, can be captured and used to make improvements there.

Township Planning Director Greg Milliken has said that if approved, township staffers hope the first revenues the authority captures will be used to build a nonmotorized pathway along the west side of Drake Road from West Main street to Stadium Drive.

He said the idea of creating a sidewalk is very important to help people get north and south on Drake Road without having to cross five lanes of traffic to do so. The east side of Drake Road (which is the east-west dividing line between Oshemo Township and the city of Kalamazoo) has a sidewalk.

On the west (township) side of the road, “You’ll see a lot of goat paths," Milliken said, referring to wear marks from pedestrians who have to cut across grassy areas to get from the food stores, restaurants and retailers at West Main Street, down to apartment complexes, homes and businesses further south.

“Townships aren’t given a lot of economic development tools,” Milliken said, “and I think people generally recognize that we’re trying to be progressive, trying to utilize this as a mechanism to make improvements along a very, very busy corridor, address a strong need and improve the quality of life for the residents.”


Will Owners Lose The Right To Be Paid For Underground Gas Storage Acquisitions?

A Texas trespassing claim has far reaching affects. The oil and gas industry maintains it can simply inject its waste product into underground caverns, with the waste going underneath adjacent properties without payment of any kind. Are these above-ground owners not losing their constitutional right to compensation?

When we buy a right, we get what we buy. Generally, when buying in “fee” one buys to the center of the earth. To somehow assume that there must be an exception because of changing technologies does not meet with the reality that people are to be paid when they lose their property interest. Under the American system of compensation owners have the right to be paid upon the taking of a property interest. Trespasses are to be prohibited with injunctive relief.

Possibly the oil and gas interests are so strong that the overwhelming power of the industry in Texas will modify 100 years of law. However, this will not be good for any individual who owns property.

The Dallas Morning News

Traditional common law dating back hundreds of years held that a landowner possessed all land above and below the property boundary “from heaven to hell.”

The law of trespass evolved to prevent encroachment by outsiders, offering a quiet place to go about one’s business without interference. Today, the sanctity of private property is a principle held just as dear.

But times change, and so does technology.

Seventy years ago, the United States Supreme Court ruled that a landowner cannot prevent airplanes from flying overhead. The court said the traditional property doctrine “has no place in the modern world.” Thereafter, a landowner controlled only as much space above the surface as could be reasonably used or occupied.

With respect to intrusions underground, however, the law remains less clear.

Some legal scholars argue that the same restrictions should apply below the surface as above it.

But the Texas Supreme Court has held on at least two occasions that trespassing can occur deep underground. In one instance, a slantwell was deemed to have trespassed when it crossed beneath neighboring property. Another decision involved horizontal fractures from drilling.


Columbia Gas Files To Obtain Maryland Pipeline Easements

After a contested battle to obtain a FERC permit, Columbia Gas is now proceeding with the eminent domain process on dozens of Maryland properties.

These properties in Baltimore and Hartford Counties may suffer substantial damages.

Without a doubt, outstanding lawyers such as Joe Suntum will have to deal with Columbia for years into the future because of these serious and substantial cases.


The Baltimore Sun

In three federal lawsuits filed since January, Columbia Gas Transmission seeks to invoke eminent domain to obtain temporary or permanent easements on more than 400 acres for its 21-mile pipeline extension.

The project, which gained approval from federal regulators last November, has sparked concern among neighbors about safety, environmental issues and property values.

In the latest lawsuit, filed Tuesday, the company is seeking immediate access to 370 acres from more than two dozen Baltimore County landowners, saying it needs the easements to start pipeline construction. The company says it was able to reach agreements with other landowners affected by the pipeline route, but could not do so with the owners named in the suit.

"Columbia has negotiated with the Landowners and made bona fide efforts to acquire the necessary easements by agreement but has been unable to obtain any such rights by contract, or to agree with the Landowners upon the compensation to be paid," the lawsuit states.


Michigan Lake Erosion Case Continues

Adjacent waterfront owners have sought inverse condemnation relief because jetties are damaging their property creating additional natural erosion.

The plaintiffs have been up and down in the Court of Federal Claims.

One has to wonder whether the owners would have been better off in seeking relief in the state court under the Tumilion decision under eminent domain precedent.

The Herald-Palladium

The Shoreham and Lincoln Township property owners have been fighting a legal battle for 14 years to get the federal government to pay for the taking of their property. Compensation must be paid when property is taken by eminent domain, statute or regulation.

The piers, maintained by the Army Corps of Engineers, were gradually encased in sheet steel from 1950 to 1989.

The property owners contend that the jetties block the flow of sand and sediment from the St. Joseph River and lakeshore north of their land. That has led to erosion, an unlawful taking under the Constitution.

"What they've done here is let Mother Nature take the property," said John Ehret, a plaintiff and lawyer in the case.


Will A Challenge To County Road AAA Succeed?

Michigan has a number of cases which maintain that if only one owner is benefitted by a new roadway, the roadway is effectively a private taking and therefore not allowed. Further, since the Hathcock decision reversed the Poletown precedent in Michigan and then the Michigan Constitution was amended, takings for private benefit or economic development clearly are not allowed.

Yet, the recent decisions maintain that certain governmental purposes are “public uses”. The Grosse Ile Bridge decision offers specific language that a “public use” is always contemplated for roadways and similar infrastructure improvements.

The thought that the Marquette County Road AAA condemnation can succeed is likely to meet with active objection. Without County Road AAA, either there will be no activity in the County, or the City will be burdened with heavy truck traffic which it will not be able to handle.

If County Road AAA fails, one can fully contemplate massive condemnation in order to allow trucks to traverse through the populated urbanized areas, destroying the basic fabric of the County as a whole. The City of Marquette will be affected to such an extent that Marquette will not be the beautiful Marquette people know it as today.

The Hingst and McGee properties are the two parcels of land the commission is purchasing. The Hingst property is located close the intersection of County Roads 510 and AAA, and the owners did not want to sell land, so the commission can use eminent domain to buy the property.

“There’s laws in the State of Michigan that deal with building public roads and obtaining right-of-way for that public road if the property owner does not want to let the road commission have that (property become) public, and that’s through the eminent domain process,” Marquette County Road Commission Engineer Manager Jim Iwanicki said.

“That’s why we brought legal counsel on, they had us do a resolution (at the meeting) to say this is what we (the commission) needed to do for the public good.”

A few people at the road commission’s meeting Monday night felt that the commission “sprung” the resolution on the property owners, didn’t tell the Hingst’s about the resolution, and that County Road Triple A only benefits Lundin Mining and the Eagle Mine.

“The road commission set out a plan of what we’re going to do and how we were going to do it,” Iwanicki said. ”We’re trying to obtain those properties based on that original plan, and again with the contact with the owner–here in this case the Hingst’s. They were interested in selling the property so we are moving forward with what we can legally do to try to obtain that property.”

“(County Road AAA) is a public road for everybody. There will be people that use it more than others, and again the mining industry is an important industry and they will be a major benefactor to this and those in the logging industry. And I believe the tourism industry will also be a benefactor for this road.”

The McGee’s sold their property in exchange for property from Longyear, a logging company. In return, Longyear requested that it would be asked first by the road commission for timber sales.


Institute For Justice Goes To Bat For Owners

In a very difficult situation, the Institute for Justice has determined that it is proper and appropriate to protect eight owners in Santa Ana, California.

The battle is somewhat uphill because the use is possibly a public use, but one has to wonder how aggressive governmental agencies have become. IJ is to be admired for its efforts.

"It’s just a very slow process," says Santa Ana Mayor Miguel Pulido. "You have to deal with every single homeowner, every single business owner."

Mayor Pulido says that this section of Bristol Street is especially important because it's a major gateway into Santa Ana, and thus requires more lanes in order to ease traffic congestion. However, the businesses believe that the city can indeed widen the streets without acquiring their properties.

The city's current plan allots 30 ft. for landscaping, and those 30 ft. are crucial for the businesses to be able to remain untouched. Christina Rush represents the Bristol Street businesses, and says they can take care of the landscaping themselves.

"We can give you that in our plan, through our landscaping, through architectural elements, outdoor seating," says Rush. "We can achieve what the city wants, that park-like look, while still allowing the businesses to retain their properties."


The Difficulty Of Changing Venue In Eminent Domain

The former Macy’s store in Sacramento is seeking a change of venue premised upon the potential for bias of the local jury.

Realistically, it is rare indeed that juries are so unfairly biased as to destroy an owner’s rights. In this situation, the owners of the former Macy’s location may find themselves surprised that the jury can be what the owners view as “fair”.

Field of Schemes

The Sacramento Kings arena battle is deep into its terminal lawsuits phase now, though of course it’s yet to be determined who it will be terminal for. (That’s what the lawsuits are for. Duh!) In the latest twist, the owners of the former Macy’s store that the city wants to seize by eminent domain have filed a motion seeking a change of venue, saying “local bias” would make it impossible for them to get a fair trial in Sacramento.

There’s more detail, but let’s skip straight to this paragraph in the Sacramento Bee’s coverage of the story:

A separate filing spells out just how far apart the city and the property owners are on price. The owners said the property has been valued at $10 million for tax purposes. The city, by contrast, recently put $4.3 million into an escrow account – the amount it says the property is worth.

Seriously, guys? All this over a little more than $5 million in price? Admittedly, that’s real money to normal humans, but it’s a rounding error to a $447 million project. Like all eminent domain cases, this is likely to end with a settlement somewhere in the middle once each side sees on which side its legal bread is buttered.

Meanwhile, the two other Kings arena lawsuits — The One About The Public Ballot Petitions, and The One About The Subsidy Value — are forging on ahead, though with no new developments this week. Yet, anyway.


Martins Beach May Learn It Has To Pay For What It Is Taking

In what would otherwise seem like a simple taking for public access to a secluded beach controlled by a wealthy adjacent landowner, a local legislator simply states, “let’s have it!”

The legislator may be surprised when he finds out that the response will be that “you have to pay fair market value for it!” While public access to a beach is a public use, one should recognize the exceptional costs that may be involved in taking away an individual’s private rights.


San Mateo County News

State Sen. Jerry Hill, D-San Mateo, will introduce legislation Monday that would instruct the California State Lands Commission to purchase a private access road leading to the beach, which is cut off from coastal access by towering bluffs. If the commission isn't able to reach a deal with Khosla within a year, according to the proposed bill, it would be authorized to acquire the road through eminent domain.

"To me there is no better or more appropriate use for eminent domain," said Hill, citing the public right to access navigable water under the California Constitution. "There is definitely a public purpose."

Khosla, one of the world's wealthiest venture capitalists, locked a gate on the road in 2008 shortly after buying the 89-acre property, situated a few miles south of Half Moon Bay. The previous owner, a family that owned Martins Beach for much of the 20th century, had for decades allowed the public to use the road for a small fee, and even provided concessions.

Attorneys have filed two lawsuits against Martins Beach LLC, the listed owner of the property, to restore public access. A suit brought by the Surfrider Foundation is slated for trial in the spring. The other, filed on behalf of a second group of surfers, was rejected in October by a San Mateo County Superior Court judge. Gary Redenbacher, attorney for the group, plans to appeal once that ruling is final.


The Problem With Airport Counts

One only needs The Government Watchdog discussing the Mora Municipal Airport to understand the all too frequent problems with airport expansions.

Claiming there are 24,000 annual flights when there are probably 2,000 is a “tradition” with airports. Somehow more flights are found as having occurred than could ever be counted. Extra training planes are brought in for a few weeks in order to increase the count and extrapolate the count to a yearly basis.

Mora has this problem. Yet, there is a need for a crosswind airport somewhere between Minneapolis and Duluth.

Some of the airport’s neighbors also point out that the number of take-offs and landings at the municipal airport—more than 24,000–appear to be wildly exaggerated on the city website.

“There’s no way. Not even close,” said Bruce Burk, who keeps an eye on the airport from his dairy supply business next door. “I’d say if they get two or three a day in the wintertime, half a dozen a day in the summertime, maybe a dozen or 20 on a Saturday or Sunday when the guys are out playing … . But that’s it. There’s no way. I can’t imagine.”

Moreover, studies estimate the proposed runway won’t attract enough planes to meet the FAA’s current criteria for federal funding. But that’s not stopping anyone.


Will Missoula Succeed In The Mountain Water Condemnation This Time?

The City of Missoula was unsuccessful in its attempted public use condemnation of the Mountain Water franchise 30 years ago. The City now states that it spoke to its “advisors” and determined what was not a public use 30 years ago suddenly is a public use today.

Before the City quibbles with the facts, the City should ascertain whether the State Constitution and the legislative enactments provide the City with the power to acquire. Missoula may or may not like the answer. See Township of Grosse Ile v Grosse Ile Bridge Company, 722 NW2d 220 (2006), Per Curiam of the Michigan Supreme Court.



After five years of litigation and appeals, the Montana Supreme Court ruled against Missoula in the eminent domain case. State law says public bodies must show that the taking is “necessary” to the public interest, and the high court ruled it wasn’t.

“Since this property is already a public utility, and hence to some degree dedicated already to a public use, it is not more necessary the city take over its operation,” reads the 1989 decision. “The public interest will be best served by the city not being permitted to condemn Mountain Water.”

Now, 30 years later, the city of Missoula is headed toward condemnation again. So what’s changed?

Quite a lot, according to Mayor John Engen. Engen said he and the lawyers on his advisory team believe the city is prepared to make a winning case for public ownership, and on Wednesday they plan to share with the City Council and public as much as they can without tipping off the opposition.


Bluegrass Pipeline Slowed Down But Not Stopped

While the local owners may have something to celebrate because of the delay in the approval of the Bluegrass Pipeline Environmental Assessment, do not be surprised if the missing parts are filled in and approval is granted shortly.

The failure only causes a delay, and should not provide owners who are about to lose their properties any solace. If the Environmental Assessment is approved, the pipeline will in all likelihood occur shortly thereafter with acquisitions being initiated almost immediately.

"Bluegrass Pipeline submitted an incomplete permit application to the Army Corps of Engineers Louisville. It is a Department of the Army permit request for activities potentially subject to Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act," spokeswoman Carol Labashosky said in an email provided on Tuesday.

"They have need to identify of all the waters that would be impacted in their application -- which remains to be done. The Corps will not make a decision regarding any environmental impact studies or statements until we have all the information for a complete application. The expectation is that they would resubmit in March."

A spokesman for the Williams Cos., which is developing the natural gas liquids pipeline with Boardwalk Pipeline Partners L.P., did not immediately respond to a request for comment. Williams' plan has been for construction on the pipeline, which would carry hydrocarbons such as ethane, propane and butane through new and retrofitted underground sections, to begin in 2014.


Ag Week Covers The Easement Issues, Eminent Domain And Landowner Rights

Below is an article which provides a balanced description of the risks of buying property subject to an easement, expressing the concerns of what is being given up in an easement without any fiery talk that the participant acquiring the easement is some kind of demon. Yet, the article does not fully express the powerful and overwhelming effect on the servient land owner and the substantial harm to the property subject to the easement. One only need look at the blog posting on how individuals in northeast Ohio who were subject to fifty plus year old unused easement are now being damaged, without the least right to compensation!


Easements are a recurring issue for landowners, and I regularly receive calls with a number of common questions, including recent calls for the Sandpiper Pipeline Project by Enbridge. As oil and gas gathering infrastructure catch up with the boom, landowners in the region will continue to receive requests for easements.

If you receive an easement proposal, it is an important preliminary question whether the developer has the right to come on to your property without your permission. There are three common situations: The developer has eminent domain authority; the developer has an implied easement because it owns the minerals; or the developer does not have the right to enter without permission.

Eminent domain authority allows the developer to obtain access to the land without the landowner’s consent, after satisfying certain statutory requirements. Eminent domain can be used if it is a common carrier pipeline, which is specifically defined at N.D.C.C. § 49-19-01. Generally, a large pipeline that will be open to general use by mineral developers is considered a common carrier. Additionally, public electric utilities often receive eminent domain authority for electric transmission lines. The key aspect of these projects is a “public use” component. In order to exercise eminent domain authority, the developers typically have to participate in proceedings before the North Dakota Public Service Commission or the Federal Energy Regulatory Commission. This is another situation where landowners should be involved and also provides a significant clue as to whether a project will be able to use eminent domain authority to obtain easements.

Even if a mineral developer does not have eminent domain authority, it is possible that ownership of the minerals themselves will give that mineral owner the right to enter the surface estate. The basic test for determining whether the mineral developer has the right to put in a pipeline without obtaining an easement can be summed up in a question: Is the pipeline reasonably necessary in order to develop the minerals underneath the surface?

For example, if you own the surface of Section 19, and someone else owns the minerals, the mineral owner has the right to use the surface of Section 19, as is reasonably necessary to produce the minerals underneath Section 19. There are some important additional points and distinctions to this general rule and what counts as “reasonable necessary” may be arguable. So it is important to talk to an attorney if you think this situation might apply to you.

If a developer has neither eminent domain authority nor an implied easement as the mineral owner, it might be a situation in which the developer does not have a right to build a pipeline without your permission. This is frequently the case when a gathering pipeline is not connected to wells on your property. Unless your property is part of a unit and the gathering lines are connecting the wells in that unit, it is likely the mineral developer does not have the right to run the gathering line across your property.

It is crucial for landowners to be aware of their rights, specifically when they have the right to deny access or refuse to sign an easement. This is not to say that landowners are better off denying access or easements, particularly with the need for gathering infrastructure in North Dakota. Landowners should not be afraid to demand provisions in an easement that protect them and their land, however, and having the right to say no often provides the leverage needed to obtain these provisions.


Canada Steps Up On The New Detroit River Crossing

At long last, someone has gotten off the dime on the Detroit River Crossing. Without a plaza, there is no reason to have a bridge. Without the money for the acquisition of the plaza, nothing will occur.

Finally, Canada has figured it out and stepped up!


Crain's Detroit

The Canadian government plans to start buying land in Detroit for the U.S. portion of a new bridge linking the nations, a Canadian official said in a report published Sunday, a move that bypasses opponents of the project and comes as the U.S. government hasn't yet allocated money.

The $2 billion-plus project to add a second span across the Detroit River between Detroit and Windsor, Ontario, is simply too important to delay, outgoing Canadian Consul General Roy Norton in Detroit told the Detroit Free Press.

Canada is paying most of the project's cost on both sides of the border. It plans to recoup the cost with tolls traveling in both directions. Officials have said they hope to open the New International Trade Crossing in 2020.

"We're about to proceed with land purchases some time in the next few months, and we're going to do that whether there's been an indication from the U.S. government on a commitment to the customs plaza or not," Norton said. "That involves a little bit of risk on our part, obviously, but we're so confident that this ultimately will be built that it's prudent to do that."

Last month, Michigan Gov. Rick Snyder complained about the Obama administration's failure to commit $250 million for a border inspection plaza.


Swapping Carbon In Michigan Oil Wells

Injecting carbon dioxide in fields in order to produce additional gas and oil may make sense. At the same time, environmental groups are somewhat concerned about whether the CO2 might otherwise be released into the atmosphere. Pipeline safety is a mandatory element of the proposed ongoing legislative process in Michigan.

AM 1660

Waste carbon-dioxide recovered from power plants and other sources is pumped into the well to force the oil out. He argues it would also sequester the carbon wastes underground.

Environmentalists have concerns over encouraging more fossil fuel production and a provision that would let the drillers use eminent domain to run CO-2 pipelines through private property.

The bills were discussed and testimony heard but there was no vote this week.


Dealing With A Bankrupt Property Owner

The North Carolina Department of Transportation has learned a difficult lesson. When a property is in bankruptcy, the first relief necessary is that from the Federal Bankruptcy Court. Prior to acquiring property, the government must seek approval of the Bankruptcy Court for the acquisition. The North Carolina Department of Transportation has learned this circumstance the hard way.

Bulldoze first, ask permission later. That was the N.C. Department of Transportation’s approach in Cabarrus County, where the little matter of a bankruptcy filing threatened to slow the construction schedule for a big highway project.

A federal bankruptcy judge in Raleigh fined DOT for illegally condemning a half-acre of land in 2012 and demolishing a vacant building. And DOT’s lawyer made matters worse, the judge said, by giving “absolutely untrue” statements in an effort to win permission for the condemnation in court – a year after the fact.

“Nothing short of the imposition of punitive sanctions will send the correct message to the department or give it the incentive it clearly needs to mend its ways,” Judge Stephani Humrickhouse, a Raleigh-based federal bankruptcy court judge, wrote in her Dec. 31 ruling.

Illinois Department Of Transportation Short Circuits Fairness

A process in Illinois which allows the Department of Transportation to make an offer of less than the appraised value of a property for “negotiation” purposes is a veiled attempt to blackmail property owners. Even the Uniform Relocation Assistance Act requires an offer to be not less than the property’s appraised value.

In Franklin Park, a county forest preserve district sought condemnation of approximately 204 acres which included a golf course. The District obtained an appraisal estimating the value at $10.2 million, and made an offer of $9.27 million with 10 days to respond before proceeding to condemnation.

The chief negotiator for the District testified that the practice of the District was to make an initial offer 10 percent below the appraisal value and that he had the authority to go to 10 percent above the appraised value without any further approval by the board, the decision states. A few weeks after making the initial offer, the original appraiser verbally updated the value to $11.2 million, but a separate appraiser retained by the District placed the value at $8.99 million. The owners rejected the District’s $9.27 million offer and did not respond with any counteroffers. The District sought condemnation.

“In many ways, IDOT’s claim of good-faith bargaining is stronger than the District’s in Franklin Park,” Goldenhersh wrote.


Washington Senate Destroys Necessary Project

To stop a project all one needs is a few vociferous voices having personal (or pecuniary) reasons for opposing a project in order to destroy the project.

Much like the Detroit International Bridge Crossing, some strong-willed supporters of a few State Senators have successfully destroyed the opportunity to create a very important Columbia River crossing between Oregon and Washington.

The affect of the project not occurring is short-term. Construction dollars will be lost, especially attractive since a third-party, being the federal government, is paying for most of the project. However, the long-term loss to commerce will be something that both Washington and Oregon will find relevant on that day there is a glitch in its local industries.


The Oregonian

This fiery group of outsiders has pushed the CRC to the edge of extinction, even after more than ten years and $190 million spent on planning. Some Oregon lawmakers are beating a hasty retreat from the project because of the repercussions from Washington's pullout:

Sen. Don Benton, R-Vancouver

● Financial risk: Losing Washington as an equal partner means Oregon would have to issue all the debt to fund the $2.8 billion project and bear all the downside of cost overruns.

● Tolling and eminent domain: The prospect of Oregon crossing the Columbia to enforce tolls and condemn property in another state raises daunting legal and political questions.

● Credibility: Some lawmakers question whether the CRC's rosy projections about the Oregon-only plan can be believed.

● Bridge fatigue: Like a bad headache, some lawmakers just want the CRC to go away.

Some influential players in Salem, most notably Senate President Peter Courtney, fear the "Oregon-only" plan and have backed away from their support. For his part, Kitzhaber has called upon the Oregon Legislature to reauthorize Oregon's $450 million contribution of the CRC.


Homeowners Fail To Understand Pipeline Easements

When individuals purchase properties subject to an easement allowing the installation of a pipeline for $150, the owners never thought that a new pipeline would be built under the fifty plus year old easement agreements.

Now, sixty plus years later, the pipeline company wants to build the pipeline it is allowed to build for the $150 paid. These owners are stuck, because once an easement is granted it is not taken back. Further, the utility can use the easement for any purpose allowed pursuant to the terms of the easement.

In its complaints, Sunoco said a 1930-vintage easement gives it the right to install for $150 the new pipeline, adjacent to 6-inch and 10-inch pipelines already buried in the 10-foot-wide easement.

The complaints ask the court for an injunction barring the homeowners from interfering with the new installation.

“Our clients do not believe that an easement that was executed in 1930 has any full force and effect in 2014,” said Atty. William Goldman of Columbus, the homeowners’ lawyer.

“We don’t think that the company, Sunoco, has a valid claim to do what they want to do, and certainly not without paying a substantial consideration,” Goldman said.

Jeff Shields, Sunoco’s communications manager, declined comment because he said the company doesn’t do so on pending litigation.

In its injunction request, Sunoco said the multimillion-dollar project, known as the Allegheny Access Pipeline, “will require only temporary excavation,” after which the land will be reclaimed.


North Dakota Attempts To Control Gas Production

As in Michigan, North Dakota is also grappling with gas production and eminent domain issues. Part of the problem is how to properly gather and transport the gas. Eminent domain activity is contemplated as part of the process, which always offers a very interesting balancing act.


As the regulatory body, the Industrial Commission would decide which agency – the Department of Mineral Resources, the state Department of Health or another entity – would monitor and enforce the plans.

The proposed changes would go into effect for new drilling permits starting June 1. For existing flaring wells, producers would need to submit a plan by either September or March 2015, depending on the size of the well.

Petroleum Commission President Ron Ness said the “key to this whole pitch” is planning ahead on Day One, rather than after the fact.

Along with the GCP requirements, the task force Wednesday asked the Industrial Commission to help in the flaring fight in ways only the state can, like tax incentives on pipelines, electric transmission and value-added ventures like liquefied natural gas.

The task force says the primary cause of natural gas flaring is the inability to obtain certain right of ways to lay pipeline, and recommends the formation of another task force for that issue.

“Right of way is the single largest time delay in getting pipe in the ground so (in) reducing flaring,” Dille said, adding that compared to other states such as Texas, North Dakota has more restrictive eminent domain, or “quick take,” laws.


The Carbon Dioxide Balancing Act in Michigan

The Michigan Legislature is apparently on its way to enacting tax relief for carbon dioxide injection into oil wells.

This has a two-fold benefit. First, it increases oil production. Second, it is a way to rid ourselves of greenhouse gases.

On the other hand, the Bill would provide private companies with the power of eminent domain, a serious concern and a future problem!

M Live

He also expressed concern about oil companies being able to use eminent domain to install pipelines on private property.

While the tax rate will decline for certain projects, it may also spur additional oil production, so it's unclear how the change will impact state revenues, according to a House Fiscal Agency analysis. The oil and gas severance tax currently generates about $60 million for the general fund each year.

"The general fund will be getting revenue from oil otherwise staying in ground," said Bob Mannes, president and CEO of Traverse City-based Core Energy LLC, which operates carbon dioxide enhanced oil recovery projects in northern Michigan.


Vancouver, Washington, Will Condemn Leasehold

Even a leasehold may be acquired through an eminent domain proceeding. By example, if the government provides a lease to a potential tenant which maintains a lease clause stating there will be no eminent domain action, the community still may condemn the lease in the future.

In the Vancouver situation, the Port Authority desires to acquire a piece of a major scrap yard, without giving consideration to the affect on the scrap yard as a whole. Now that the Port Authority realizes it was a substantial taking, the Authority is considering simply acquiring the entire leasehold.

Obtaining this leasehold will not simply be a matter of how many years are left on the lease, but rather what is the value of this going concern.

The Columbian

The port prefers to avoid the condemnation process, said Theresa Wagner, the port’s communications manager. But lease terms require it to be ready to do that. The two parties remain in negotiations, she said. “Our hope is that we won’t need to condemn.”

Joe King, a spokesman for Pacific Coast Shredding, said Tuesday the commissioners’ decision was unnecessary. The Jan. 31 deadline could have been extended to allow more time for negotiations, he said, to avoid an eminent domain action.

“We could have moved that date out,” King said. “We’re just disappointed that commissioners (are) being heavy-handed. Condemnation is a very serious thing.”

‘The crown jewel’

Port administrators say the port is following state guidelines in acquiring the property at Pacific Coast Shredding to construct a new rail entrance as part of its larger $275 million West Vancouver Freight Access project.

The company, a port tenant since 1997, breaks down hundreds of thousands of tons of recycled scrap metal for shipment overseas. The metal processor’s parent is Metro Metals Northwest Inc., which operates in Vancouver and Portland.

During Tuesday’s public hearing, Curtis Shuck, the port’s director of economic development and facilities, said Pacific Coast Shredding “continues to work closely” with the port to move through the land-acquisition process.


Baldwin Road Activities Heat Up

Baldwin Road activity has been an ongoing effort for at least five years. The problem with the Baldwin Road widening is that the taking will destroy a number of historic buildings. At this time, Road Commission appraisers are entering properties on the south (and first) portion of the Baldwin Road project.

The properties along Baldwin Road are substantial. This is not a simple proposition of acquiring a little frontage and walking away with a smile on one’s face.

Oakland Press News

With an increasing amount of traffic and housing in the area, discussions to widen Baldwin Road began between the Road Commission for Oakland County and Orion Township in the 1990s, Noechel said.

For the first phase of the project, Oakland County has secured $6 million - a combination of federal, county and township funds - to acquire property along the road. No money has been identified for the actual construction, which could be between $10 million and $12 million.

For the first 1-mile stretch, the plan is to create a four-lane boulevard from Morgan to Judah streets and a five-lane road from Judah to Gregory streets with roundabouts at two intersections.

The county will apply for additional federal dollars next year, Noechel said. But, even if funding is identified, construction would not start before 2016. The county will begin negotiating with private property owners to acquire land this fall.

The second phase will be to expand Baldwin Road for a 2-mile stretch between Gregory and Waldon roads.

While he sees the need to expand Baldwin Road, the project could change the historical nature of the area, said Gary Rutledge, chairman of the Elder Board for the Gingellville Community Church on Baldwin Road.

"Certainly, a change in Baldwin Road is necessary," he said. "The traffic on Baldwin Road is extremely difficult during rush hour. It's just packed with cars. The road commission has recognized the need for doing it and has been pursuing it for a number of years. Having greater capacity on that road is going to be a great benefit to the community."


Proper Recording Required!

In a Mississippi case, the owners of a piece of property claimed that improper notice was provided for the impending condemnation of their property.

The eminent domain process requires notice to be given to owners of record. In most jurisdictions individuals who otherwise show a real interest in the property are required by statute to be provided with notice as well.

Improper filing notice of ownership at the wrong recording office is tantamount to not filing at all.

A Mississippi Court of Appeals decision found that the filing at the appropriate office of a title interest is required in order to effectuate the need for notice.


Clarion Ledger

In April 2009, the utility filed an eminent domain case to take the easement. In response, the Walkers filed a lawsuit that said Jim Walker Jr. and his father, Jim Walker Sr., had interest in the land by way of a 2003 warranty deed that had mistakenly been recorded in the wrong judicial district in Harrison County. Jim Walker Jr. and his father argued that they weren’t given proper notice of the eminent domain action.

The Appeals Court said the “filing of the deed in the wrong judicial district is tantamount to filing in the wrong county and does not constitute constructive notice.”


Oklahoma City Fight Continues

The Oklahoma Eminent Domain Code provides for the surrender of possession if there is no objection appropriately filed. Further, the court-appointed commissioners determine the amount of the estimated just compensation to be paid. Oklahoma City is determined to acquire the former Santa Fe Depot, and is moving forward with the claimed acquisition.

The city sought to pay $2.5 million, while Brewer Entertainment countered with a $23.5 million purchase price.

Court-appointed commissioners in September set the sales price at $4.5 million, which the city council on Tuesday agreed to pay into an escrow account. But attorneys for the Brewers filed an objection, arguing the city could not show it intends to use the depot to facilitate “intermodal transportation,” which is defined as “the movement of people involving more than one mode of transportation during a single, seamless journey.”

Assistant city attorney Dan Brummett said that objection was dropped this week, though Brewer Entertainment can still ask for a jury trial to seek further damages. The city received a $13.5 million federal grant last fall, which is being used with $14.8 million in local funding to acquire, renovate and expand the depot to accommodate the new MAPS 3 streetcars and a potential regional passenger rail system.


Robbins Mine Keeps On Going

Thankfully, we have community leadership in Robbins, who are a bunch of blithering fools. Detroit was never this bad. The relationship between the trustees seeking a “redevelopment” in the form of mining in a nearby City of Chicago suburb and the special relationships of the elected officials with the lobbyists and proposed developer gives this writer an opportunity for humorous relief.

Keep your eye on Robbins, because there is no other community like it now being written about!


Southtown Star

Dart launched his investigation after the SouthtownStar reported that Robbins had secretively entered into a deal with ALM Resources in May to develop the mine and a limestone quarry along with asphalt and concrete plants.

In a letter to Mayor Tyrone Ward, Dart called the redevelopment contract “vague, misleading and uncertain” and questioned political donations that ALM Resources made to Robbins’ officials.

ALM Resources wanted to acquire all the land through a “quick-take” process, using Robbins’ power of eminent domain, which allows it to take private property for the public good. Such a process requires legislative approval, and many residents had feared that such a bill could pass in the Legislature’s fall veto session but it did not.

Mineral rights are often purchased outright or leased from landowners, according to Subhash Bhagwat, a retired Illinois State Geologic Survey resource economist. In some deals, landowners get a percentage of the revenue from the limestone mined underneath their property, he said.

Reached by phone, ALM Resources managing partner Jim Louthen referred all requests for comments to company spokesman Paul Stewart.


Mineral Unitization Is A Public Use

In an article supporting those who oppose fracking, one needs to review and balance the issues at hand. When large numbers of property owners desire to allow their property to be available for fracking, the oil drillers are required to obtain “units”, meaning there is a “unitization” of a larger tract which includes those opposed to the project. Ohio is not alone with this problem. Yet, the State has determined that unitization, meaning forced acquisition of other properties, is a public use. The underlying determination is that mineral development is for the public benefit as a whole, and therefore should be given favorable consideration.

Norwalk Reflector

With approval from the Ohio Department of Natural Resources, Chesapeake was allowed to include 24 unwilling landowners in the large drilling unit — an area of land under which the company can extract resources — even though the owners had not signed leases granting rights to the minerals below.

By establishing what is called a unit operation, Chesapeake was allowed to drill horizontally through the shale thousands of feet beneath their properties and maximize profits from natural gas and liquids. The unwilling participants receive payments after wells go into production, but the rate is not negotiated in the way it is with others.


The City of Boulder Needs A Delegation

The City of Boulder may complain and again appeal unfavorable Public Utilities Commission’s decisions, but even a City has to live by the law.

If there is no delegation allowing the City to condemn the property outside of the territorial limit, the eminent domain proceedings will not occur. Further, if the City of Boulder decides to acquire only within the territorial limit, it may find a huge partial taking problem in the damages to the remainder of the electric utility.

The city of Boulder has filed an appeal in Boulder District Court of two rulings by the Colorado Public Utilities Commission that the city believes could make it more difficult to acquire Xcel Energy's assets to create a municipal energy utility.

Last fall, the PUC ruled that it had authority over which properties and facilities outside city limits that Boulder could acquire through eminent domain, and that the city should apply to the PUC before beginning condemnation proceedings against Xcel.

Commissioners said they had an obligation to protect regional reliability and out-of-city customers.

Boulder's appeal addresses both those issues. That appeal could take several months, and city officials have indicated they hope to file for condemnation sometime this spring.


Local Politics Unlikely To Stop New York Transmission Line

The local New York community Town Board may fight and vocalize all of its objections through media and public officials, but in the end, the question will be one of whether there is a public use involved. Possibly, the decision to place the line in an alternate position may be of value. At the same time, the public blaring of objection will do no good whatsoever.


STUYVESANT - The Town Board unanimously passed a resolution at its regular meeting Thursday requesting Gov. Andrew Cuomo and the Public Service Commission scrutinize a proposed power line expansion to send more electricity from upstate to downstate.

The resolution was approved following the annual organizational meeting.

Guest speaking at Thursday night’s meeting was Ian Solomon, representing Farmers and Families for Claverack. Solomon explained the processes by which local municipalities and residents can be informed and express their views on proposed upgrades to transmission lines running through their town.


The adopted resolution pertains to the proposal to almost triple the power output, from 115,000 to 345,000 volts, of existing power lines running through the town and the possibility of getting additional land by eminent domain.


Valuation Of Property At Its Highest And Best Use

A Sioux Falls case involving the acquisition of property which could have and would have been redeveloped to a hotel use offers an interesting perspective.

The proposed profitability of the hotel is not in and of itself admissible. However, the substantial potential in being able to redevelop the property as a hotel use is a consideration which must be given in the valuation process.

In its petition to condemn the property, the DOT valued it at about $20,100. Miller and Walsh, however, say the land is worth more than $500,000.

Monday’s hearing was for Circuit Judge Susan Sabers to decide on several motions filed in the case before a jury trial. The DOT had argued that Miller and Walsh shouldn’t be able to present evidence to the jury showing their estimates for the property’s value if developed.

“He has to show his injury is greater than that which the public suffers,” said the DOT’s lawyer, Karla Engle, during a hearing last Sept. 16. “I don’t think he’s done that.”


Midwest Energy News Writes A Friendly Piece For Transmission Companies

Midwest Energy News, a publication totally reliant on the energy industry, has provided an article about how to “work with” property owners.

The reality is that all acquiring electric companies have to do is start to treat people fairly.  Midwest Energy News makes it sound like if you have enough meetings and provide owners with enough free coffee, the owners will simply accept a steamroller to their own houses and farms. This simply does not work.


Midwest Energy News

A historic transmission build-out is underway in the Midwest in an effort to help the nation’s aging electricity grid catch up to 21st century demands. As the frequency of outages grows, so does the need for new “green energy superhighways” to deliver wind power to cities from more sparsely populated rural areas.

With transmission bottlenecks being a key impediment to wind power’s growth, the report says it is critical for developers to address communities’ concerns.

The report’s recommendations include hosting more open houses, having a better online presence, and allowing more collaboration on routing decisions.

Some good news for developers: landowners and communities in the path of transmission projects often start out neutral or skeptical, but not reflexively opposed to projects. Instead, they tend to raise questions and concerns early on and wait for answers before taking a position.

It’s when these questions and concerns aren’t adequately addressed that views can harden against a project, the report suggests.

“One of the easiest recommendations for developers to implement is to increase the frequency of open houses and public meetings,” it says.

Kinder Morgan in New Mexico Sounds Like Enbridge

The Kinder Morgan El Paso pipeline proposal to traverse New Mexico sounds very much like what has occurred in Michigan with Enbridge. A line has so deteriorated that the company is in a rush to put in a new line. The line then becomes an additional line, only adding to the burdens for the individual property owner.

Mountain View Telegraph

Mike Mechenbier, one of the largest landowners in New Mexico, said he received a letter about the project for each of his four affected properties last June. He denied Kinder Morgan agents permission to survey his properties in Socorro and Valencia Counties.

However, even if the landowners decide they do not want a pipeline on their property, Kinder Morgan can condemn the property and gain access due to the right of eminent domain.

Mechenbier said he objected to the pipeline's construction because he already has a couple of lines on his property and worries Kinder Morgan doesn't properly maintain the equipment. Transwestern Pipeline Company traverses Mechenbier's ranch but, he said, that line has been maintained while Kinder Morgan's El Paso Pipeline remains exposed and in disrepair.

Mountain View Telegraph

However, even if the landowners decide they do not want a pipeline on their property, Kinder Morgan can condemn the property and gain access due to the right of eminent domain.

“Originally they came in and said they just wanted to explore routes for the CO2 pipeline, and I come to find out after the fact they already identified a route they were going to take,” Mechenbier said. “Unbeknownst to me and the other landowners they have eminent domain rights.”

Mechenbier said he objected to the pipeline’s construction because he already has a couple of lines on his property and worries Kinder Morgan doesn’t properly maintain the equipment. Transwestern Pipeline Company traverses Mechenbier’s ranch but, he said, that line has been maintained while Kinder Morgan’s El Paso Pipeline remains exposed and in disrepair.

“My biggest problem is I don’t want it there in the first place and if they do put it in I have to fight to have it maintained in a reasonable manner,” he said. “We’re really not motivated by the money, I’m more concerned about the scar it will leave on the ranch.”


Santa Monica and United States Go At It

Two agreements, one allowing the federal government to use land and one giving up the leasehold, are contradictory.

It is noteworthy that the City of Santa Monica recognizes that it must go to federal court to seek a declaratory judgment with the federal government. All too often Cities make a mistake and file these actions with the United States government in the state courts, which never maintain jurisdiction over a dispute with the federal government.

The city believes that it did not relinquish title to the airport when it leased the property to the U.S. government during World War II, when Douglas Aircraft produced thousands of airplanes at the airfield for the war effort. During its leasehold, the federal government substantially improved the airport, building the single runway, the control tower and other infrastructure. When the government relinquished the leasehold on August 10, 1948, it stipulated that the property must remain an airport, and that if Santa Monica violates any part of that agreement, the property reverts to the government.

In the 1948 instrument of transfer, the city was bound by the following condition: “That no property transferred by this instrument shall be used, leased, sold, salvaged, or disposed of by [the City] for other than airport purposes without the written consent of the Civil Aeronautics Administrator [predecessor of the FAA].”

The Santa Monica complaint seeks both a declaration that clear title to the airport property belongs to the city and that the requirement to keep operating the land as an airport is unconstitutional (“a taking without just compensation”).


GOP Legislators Seek Limits On Eminent Domain In Iowa

A number of farm legislators are attempting to weaken the powers of eminent domain for utility companies in order to protect farmers in their jurisdictions. In addition, the proposed legislation limits acquisition of land for water retention.

This issue will be heavily litigated and more heavily lobbied in Iowa during the coming years. Even if there is a successful limitation in one House, the same will have to occur in the second House of the legislature, and then not be vetoed by the Governor.

This is a difficult uphill battle for the citizens of the community, and these farmers and other owners may succeed. However, if there is an initiative process in Iowa, one would suggest the farmers look to the electoral route before the project begins!

The target of their legislation is the Rock Island Clean Line, a $2 billion, 500-mile overhead direct current transmission line. It would deliver 3,500 megawatts of wind power from northwest Iowa to communities in Illinois and other states to the east.

Rogers called private property rights “critically important to our way of life.”

A second bill would clarify that developers of private projects -- recreational lakes, for example -- could not use eminent domain. Legislation to address that issue was unsuccessful last year.


Ellisville, Missouri, Gets It Right

Rather than financing the acquisition and demolition of a 250 unit apartment building, the City of Ellisville brought a resolution opposing acquisition by eminent domain of a property necessary to build a Walmart. While the community may have otherwise clearly wanted the Walmart, it also recognized that individual rights should not be destroyed. Missouri lawyers such as Robert Denlow have been fighting to protect these owner rights for years.


Late in December, the town’s city council took the constituent pressure a step further by passing a resolution that curbs the power of eminent domain. The resolution contains bans on condemning apartment complexes and “multi-tenant dwellings” for projects that have economic development as their sole purpose.

Adam Paul, mayor of Ellisville and a key activist in turning Walmart away, called the resolution “amazing.” Residents no longer “have to live in fear . . . of the threat of eminent domain for economic development.”

Paul noted that there is no issue if Walmart wants to build a store “on its own dime.”


Evergreen Terrace Lawyers Desire To Withdraw From Case

Evergreen Terrace has had to suffer through a lengthy and difficult challenge to an improper condemnation filing. Ten years is a long time to protect the overwhelming power of the government. When there are multiple partners involved, the frustration and anxiety simply becomes more intense. Here, we have the minor partners suing the outstanding law firm representing them. One can only admire the law firm for maintaining control over very difficult litigation by properly representing the owners. One has to admire Ungaretti & Harris for doing such a good job, and it is sad to see the unhappy result of their hard work.


The lawyers for the Evergreen Terrace apartment complex in Joliet have filed a motion to withdraw from the case, saying they have not been paid for their services and have been sued by the sister of the housing complex’s most well known owner, Ronald Gidwitz.

The motion to withdraw is the latest sign that the defense may be unraveling as the legal fight enters its ninth year and Joliet continues to press its condemnation case to take over the 356-unit, low-income apartment complex.

This week, the city council is expected to vote on a settlement with tenants, who, along with the U.S. Department of Housing and Urban Development, were co-defendants with Evergreen Terrace owners when the trial started in October 2012. HUD settled with the city of Joliet in November.


Ruffling The Owner

Tung Tran, a gas station owner in Elgin, Illinois, has suffered an experience no one would want to endure. Working hard throughout his life, Mr. Tran bought a gas station. When a road was widened, tearing out his pumps, Mr. Tran was left with a “party store” according to the Illinois Department of Transportation. Is there no recognition when the highest and best use of a property is destroyed? The government should just move forward and provide a total taking. After all, if the owner is only being paid for what the property is worth, no harm comes to the government and the government has the opportunity to avoid a “partial taking” claim. Why is something so easy made so difficult?

The Courier-News

After earning a degree in hotel and restaurant management, and working for years in restaurants and nursing homes, Tran achieved that dream nine years ago. He bought the former Hansen’s Shell service station and convenience store at McLean and Lillian Street. Until last summer, he says, he often spent 12 hours a day, seven days a week behind the counter.

Then, as IDOT continued its four-year-long project to convert the nearby McLean-and-20 intersection into a “single-point urban interchange,” Tran learned that part of that project would include taking over the gas-pumping part of his land so that the intersection of McLean and Lillian can get new turning lanes, bike lanes and a median.

Not only did the eminent domain legal proceedings mean Tran would be left without enough space to run a gas station, but he says the state paid him less than the business was really worth because state officials argued he could have gone on operating the business as only a convenience store. Finally, after a construction crew leader said contractors might start working in the Lillian Street area as early as July, he shut down the station on June 16.


Lawyer Provides An Excellent Recitation Of Colorado Law

Dan Jones, a Greeley, Colorado, lawyer, provides a short article regarding the Mall condemnations in Colorado.

His article gives an accurate and concise outline of eminent domain proceedings in Colorado. It provides good reading for the local residents in the jurisdiction.

Use of eminent domain is almost always contentious and can be very complex. A pair of high-profile local events in which this condemnation power has been used or threatened – in Longmont for the redevelopment of Twin Peaks Mall and in Fort Collins in the Foothills Mall redevelopment – suggests that a basic primer on eminent domain, how it is exercised and which entities have the power to utilize the process, may be useful to businesses and landowners.

Generally, the power of eminent domain is the power of federal or state government, or their respective delegates, to take private property for public use. In Colorado, the use of such power is governed by the U.S. Constitution, the Colorado Constitution and Colorado Revised Statutes. While the power is applied most commonly to take real property, it also can be applied to take personal property or even intangible property such as contract rights and copyrights.

Under the Fifth and 14th amendments to the U.S. Constitution, property owners are entitled to receive just compensation and due process for any property taken.

Colorado’s Bill of Rights, found at Article II in the Colorado Constitution, provides similar protections


Finding Controversy In No "Actual Controversy"

The Bluegrass Pipeline lawyers contend that there is no actual controversy in which to defend the Kentucky owners’ claims that the Bluegrass Pipeline should not be built.

Clearly there is a controversy, but the question is one of whether it is something that is justiciable at this time.

But attorneys for Bluegrass Pipeline Co. LLC say in their court filing that a judgment isn't warranted because no "justiciable, actual controversy exists." They note that pipeline representatives haven't attempted to acquire land through eminent domain or started any condemnation proceedings in Kentucky.

"Because of the absence of an actual controversy, this lawsuit presents nothing more than a request for a hypothetical advisory opinion, which is not permitted by the Kentucky Declaratory Judgment Act," attorneys Gregory P. Parsons and Chadwick A. McTighe of Stites & Harbison argue in court documents.

Kentuckians United to Restrain Eminent Domain, or KURE, claimed in its lawsuit that a controversy does exist, however, because pipeline officials have allegedly stated that they can use eminent domain under Kentucky law.

In asking that the lawsuit be dismissed, pipeline attorneys say KURE has failed to follow state law by adding to the suit all those who would be affected. (Only one property owner, Penny Greathouse of Franklin County, is listed in the suit.)

Eminent domain has emerged as one of several contentious aspects of the pipeline, which would move natural gas liquids -- hydrocarbons separated from natural gas before being transported for eventual use in gasoline, plastic bags and other products – from natural gas producing regions of Pennsylvania, to the Gulf Coast.


The Changing Face Of Alternative Energy Resource

In a recent article, the writer notes how solar and wind energy have rapidly expanded. This will affect fossil fuel prices. In reality, fossil fuel prices will probably come down with or without this alternative energy creation because of “fracking”. However, if there is one blip in fracking safety, one can expect that we will be running back to alternative energy sources more quickly than ever.

Many point to cheap solar as the biggest disrupter. Solar companies have cracked the code for manufacturing, and panel prices have fallen through the floor to well below $1 per watt. Pacific Gas & Electric, serving much of northern California, is rapidly approaching 100,000 customers with solar rooftops.

But cheap solar is not the only story. Smart appliances are enabling customers to control their energy use automatically, shifting consumption to cheaper off-peak periods. Power companies are bundling these customers together to create "virtual power plants." The PJM power region, stretching from the mid-Atlantic to Chicago, can get almost 10 percent of its peak needs from such "demand response" customers, saving as much as $650 million a month.

Wind power, thanks to technology advances, lower prices and strong state and federal policy support, also is exploding. In 2012, wind made up 42 percent of new capacity in the United States, more than any other source, representing an investment worth $25 billion. Wind supplies more than 20 percent of the power in Iowa and South Dakota, with peaks of up to 60 percent in Colorado.

Highly efficient appliances and lighting are flattening out power demand, possibly permanently. The federal Energy Information Administration now predicts power demand growth of only 0.7 percent per year, down from about 3 percent per year in the 1990s. This is happening despite growth in population and economic activity.


An Important Challenge

In an important challenge to oil producers who desire to obtain gas storage space in underground geological formations, the Delaware River Keeper Network has been found to have standing to challenge the legislation allowing the process.

Many States allow eminent domain for gas storage rights. Although a property may maintain gas storage and an owner does not know that there is gas storage space available underneath the owner’s ground, the rights have substantial value when properly and appropriately presented to the fact finder.

One can only hope that the River Keeper can protect the private ownership rights of those maintaining gas storage. The legislation has already been passed, and I suspect the courts will find a public use to exist despite the environmental challenge and the diminution of property ownership rights.


The highest court drew widespread attention last month when it struck down portions of the impact fee law providing for state oversight of local drilling zoning regulations. Three of the justices in the majority opinion said those provisions conflict with the environmental rights amendment in the state Constitution.

The court also found the Delaware Riverkeeper Network has standing to have its eminent domain appeal heard in the lower Commonwealth Court, thereby reversing an earlier ruling by that court.

The network is challenging a provision saying drillers can use eminent domain powers to acquire storage space for natural gas, said Maya K. van Rossum, the Delaware Riverkeeper. Drillers are interested in underground geological formations for storage space even if that space is underneath private land, she added.


Sometimes, Governmental Acquisition Authorities Simply Cannot Get Out Of Their Own Way

Attached is an article by Gideon Kanner, a brilliant and respected Professor of Law Emeritus at Loyola Law School in Los Angeles. Professor Kanner notes a number of cases in which some judicial control has finally taken on “prosecutorial” or “condemning authority” misconduct. The reality is that any time and every time that the misconduct is not dealt with, there is a clear violation of the basic Due Process rights of property owners.

The writer of this blog recognizes that many other eminent domain lawyers read the postings on this blog. Each of these condemnation lawyers could tell you about their own experience of being pushed around by a governmental authority, informed that an appearance is not necessary or that documents are “missing” at some administrative body.

Most frustrating is when property owner lawyers, most of whom have given up on making phone calls to governmental lawyers, E-Mail and only receive responses when the governmental agency lawyer chooses to respond. This simply would not regularly happen in normal civil litigation cases.

Gideon Kanner gets it right. The height of frustration in representing property owners reaches close to its apex when facts are misrepresented or the government attorney has his “fun” by being irresponsible or simply non-responsive. Of course, the apex occurs when the government official only responds in a deliberately deceptive fashion.


And in People etc. v Graziadio, 231 Cal.App.2d 515 (1964), condemnor’s counsel made a direct appeal to the jurors’ self-interest as taxpayers. The trial court thought that was hunky-dory and the appellate court though – where have we heard this before? – that it was not prejudicial.

Then there was City of Los Angeles v. Decker, 18 Cal.3d 860 (1977), where condemnor’s counsel lied to the jury by arguing that there was not local demand for parking, so the owner’s contention that parking was the property’s highest and best use was meritless, when in fact there was a shortage of parking space in the area and the city’s own environmental impact report took note of that. Neither the trial court, nor the appellate court saw anything wrong with the condemnor’s conduct, and the Supreme Court had to step in again to remind government counsel of their ethical duties.

All this stuff was child’s play compared to what went on in federal courts in Florida. United States v. 320 Acres, 605 F.2d 762 (5th Cir. 1979), was a mass condemnation case to take hundreds of parcels of land for expansion of the Everglades. There, government counsel arranged with a congenial federal judge to have judgments entered against all self-represented defendants, without trial and without notice, either before or after entry of judgment. So when those poor folks showed up for what they thought would be the trial, they were told that judgment against them had been entered and their cases were over. At this point, they retained counsel who naively thought this had to be some sort of mistake, so he contacted the U.S. attorney’s office to get a stipulation to vacate these improper judgments. The feds refused. Do read about it in the 320 Acres opinion, footnote 22, which runs for four pages. And of course, though this time the judgment was reversed, nobody got chewed out, much less disciplined.

So what happened then? When the next mass condemnation case was filed in South Florida, it was assigned to the same federal district judge who conducted himself in such a manner as to be ordered by the federal appellate court to recuse himself. See United States v. 0.21 Acres of Land, 803 F.2d 620, 620, n. 1 (11th Cir 1986). In both these cases government lawyers stoutly defended the trial court’s behavior as proper.


Job Posting For New International Trade Crossing

The Windsor-Detroit Bridge Authority job posting has been placed as a public notice. Apparently this posting is being made through the Ontario\Windsor side of the Authority.

Perhaps the building of the Bridge will really occur!

Federal Appeals Court Follows Traditional State Rule

Almost every jurisdiction follows the rule that an agency may not acquire more than it statutorily has a right to condemn. In other words, eminent domain may not be enacted for a use that is not legislatively delegated to the condemning authority.

In a recent City of Idaho Falls case, the U.S. Ninth Circuit Court of Appeals properly ruled that Idaho Cities may not acquire outside the City limits unless provided specific legislative authority by statutory delegation. This falls in line with the case of Grosse Ile v Grosse Ile Bridge Company, 722 NW2d 220 (2006), a decision that maintained that an acquiring agency cannot exercise its condemnation power beyond its limits in the absence of statutory authorization.


The landowners, operating as the Alliance for Property Rights and Fiscal Responsibility, sued in state court in March of 2012 to prohibit the City of Idaho Falls from condemning land in unincorporated Bonneville County for a transmission project.

The case was moved to federal court based on the landowners’ claims that condemnation would violate their 14th Amendment due-process rights.

“(The city) had told our clients negotiations had come to an end and the next step would be to condemn their property,” said Brent Whiting, attorney for the landowners.

In its Dec. 31 decision, a three-judge Ninth Circuit panel upheld a prior ruling against the city by Chief U.S. District Judge B. Lynn Winmill.

“Neither the Idaho Constitution nor the Idaho Legislature has expressly or impliedly given Idaho’s cities that power,” Judge N. Randy Smith wrote on behalf of the Ninth Circuit panel.


Never Enough Water

A group trying to protect the South Edisto River is seeking to limit a major potato chip processor’s withdrawal of water.

This water issue is one that will pose a fight between those desiring absolute protection of the water versus those who will use water for other purposes. In this situation, one may not oppose some water withdrawal for the production of food product.

One has to wonder what will happen when the water will be withdrawn for purposes of fracking.



An agricultural surface water withdrawal registration was issued to Walther Farms by the S.C. Department of Health and Environmental Control in March to withdraw up to 805 million gallons of water from the river monthly.

Walther Farms supplies potato chip processors.

The Friends were unaware of this registration until September, and they filed an appeal of the approval that was denied because the appeal wasn't done in a timely manner.

The farm has requested a second registration, which is currently under review by SCDHEC.

The Friends, along with other conservationists, have said they don't feel the registration has been studied enough to truly gain an understanding of how this will impact the Edisto and the ecosystem.

The petition states the Friends wants the Administrative Law Court to conduct a “contested case evidentiary hearing” and reverse SCDHEC's approval of Walther's registration or condition in a way to “adequately protect the river.”

Making An Offer Based On Assessment

The Dubois Council has taken the “easy” way out by simply making an offer premised upon assessed value.

Many jurisdictions do not allow the introduction of assessed value as part of the valuation process. Some jurisdictions allow the assessment to only be provided by the owner when the assessment is higher than the government’s appraised value. Other jurisdictions allow the government to introduce an owner’s objection to his assessed value as a basis of value.

The reality of eminent domain is that the highest and best use is to be considered. In this Wyoming situation, it is clear that the owner believes the highest and best use of his property is something other than agricultural. The owner is simply not being treated fairly by the community, and will be required to obtain his fair recompense only through an equitable judicial process.



(Dubois, Wyo.) – Dubois Town Councilors decided Wednesday night to proceed with an eminent domain action on 17 acres of land adjacent to the Dubois Municipal airport on its current value. The town said the action was needed for the Dubois Municipal Airport Reconfiguration Plan. The property owner had requested a higher value be considered. Prior to the vote on Resolution 13-012 to begin the “taking,” Mayor Twila Blakeman gave the council and those in attendance some background information. “Warm River Ranch wants the 17 acres of land [to be used for the airport reconfiguration] assessed as residential lots.” She then stated that the Wyoming Department of Transportation-Aeronautic sappraiser valued the acreage at $50,000 based on agricultural assessment values, as that is what the property owner currently pays property taxes on. The property owner, however, is asking that he be compensated for the land use as residential lots at a higher value. When the item came up for a decision, the Mayor and Council Members voted unanimously in favor of proceeding to begin action for eminent domain at the value determined by the WYDOT appraiser.


Resolving Flood Issue

In a San Antonio newspaper blog, a writer defines the real conflict over flood control.

Texas, because of its soil conditions, has major floods when any rain falls. Retention of water at some specific points is required. Yet, this retention serves as a direct benefit to some while taking the property rights of others. This emotional issue creates the question of whether there is a public use for those to maintain property interest, and whether such public use correctly negates the private property ownership interest of others.

Terrell Graham and his wife’s family have owned their ranch in the Texas Hill Country for over 100 years. It’s remained a working farm and cattle ranch, and now Texas state government is stealing their land so private developers can discharge treated sewage from 1,500 new homes into the Lux family’s dry creek bed. Texans are supposed to have constitutional protection against eminent domain for private gain, but what about land heists that don’t involve eminent domain yet are still clearly for private gain? What about when government steals private property for its own gain, outside any perceptible public use? Apparently, there is no such protection for Texans.

Graham received a notice from the Texas Commission on Environmental Quality (TCEQ) in March of 2012 that a private developer was seeking to amend its permit for a wastewater treatment plant (or sewage treatment plant) that would have discharged only on the developer’s land to now include the Lux property. The TCEQ interprets the Texas water code to consider all water that drains or collects in a channel as belonging to the state. The Lux ranch has a dry creek bed that only flows when it floods, but the state considers it a creek that belongs to them, and therefore they can discharge effluent into it (to benefit a single, private developer). See the KENS 5 news report on it here.

The permit was initially for 75,000 gallons a day of effluent, but will expand to 350,000 gallons a day and up to a maximum of 1.2 million gallons a day, adversely affecting other private property owners if TCEQ approves the amended permit. That’s like 70 tanker trucks full of treated sewage being dumped onto your private property EVERY DAY. All of this sewage will be flowing downhill a few hundred feet from an elementary school.

A mechanical engineer, Graham knows equipment failure is routine and hundreds of children could be exposed to raw sewage.


Columbia Gas Storage Cases Get Hot

The Columbia Gas Company has filed a countersuit to the class action filed by property owners who have lost their gas and given up gas storage rights to expanding and seeping Columbia Gas storage fields.

The class action was filed by the Vorys firm, a law firm which maintains a number of capable and highly competent attorneys well versed in mineral rights and eminent domain. The Columbia countersuit probably is improperly filed because FERC has not has yet been granted the right to condemn.

These cases will require serious and substantial expertise to be properly presented. Attached is an article explaining the lawsuit, but an interesting commentary is made by Royce Larsen, who lost property for gas storage in another state at the end of the article.

Hiring competent counsel is the key. All too often, cases are solicited by individuals who have no sense of how to properly proceed on behalf of property owners.

Farm and Dairy

According to court records, the landowners who filed the class action lawsuit do not have a lease signed with Columbia Gas.

However, the landowners’ properties are being used by Columbia Gas Transmission as part of underground storage facilities.

The original lawsuit filed is asking for fair compensation for the landowners.

The case is not about challenging the need for underground storage facilities, but instead asking for fair compensation. The lawsuit claims the landowners are not being compensated for the use of the storage space under their property, and that the land is being used without their permission.


A Befuddling Issue In The Opportunity Corridor

In the Freshwater Cleveland article, a question remains. Quite simply, is there enough demand for industrial and research uses in the area of Cleveland necessitating the Opportunity Corridor for a project? The next question is whether the construction of the Opportunity Corridor will make the potential for increased development occur?

The Opportunity Corridor prospect for development is not an issue which may be simply answered. However, it is clearly a key consideration for Cleveland and Ohio residents to review with hopes that it works out in the best manner for all.


Freshwater Cleveland

And he certainly doesn’t see much demand for new industrial space.

“I’ve heard dozens of reasons why it’s vacant, but the least likely of them is location,” he says of the Forgotten Triangle area, which is populated by vacant brownfields. Instead, he believes the area is a victim of larger economic trends. “Whatever you read about manufacturing coming back, it’s not even a shadow of what it was.”

Tracy Nichols, Director of Economic Development for the City of Cleveland, disagrees. “Manufacturing is definitely in resurgence,” she says. “This is an anti-sprawl strategy. I don’t want businesses moving out of Cleveland to suburban areas. I want to keep jobs close to where we have transit, and opportunity for residents to have access to them.”

The Opportunity Corridor strategy would reposition land along the road for development. According to a brownfields study completed by the city earlier this year, it would open up 10- to 50-acre “superblocks” of developable land in the central and western portions. Along E. 105th Street, the strategy would be to attract tech/medical companies.


Iowa And Illinois Face The Rock Island Clean Line

Developers of the proposed high voltage transmission line are holding the public information meetings as required by statute. These informational meetings are required as part of a process prior to application with the Iowa Utilities Commission. Apparently the transmission company will proceed with the argument that it is paying for an easement and there is no affect on the remainder of the property in any form or fashion.

Iowa farmers will be litigating this issue for years to come.


Quad-City Times

An application with the Iowa Utilities Board hasn't been filed, but Wednesday's informational meeting was required by law before the developers could begin right-of-way negotiations with landowners.

The informational session also included an explanation of the compensation procedures. In one example, a landowner who signed an easement for nearly 8.8 acres of land with two structures would be paid about $100,000.

However, several landowners were skeptical at Wednesday's session. Among them was Jon Deerberg, who farms on land south of Clarence with his father.

Rock Island Clean Line is a unit of Houston-based Clean Line Energy Partners. Major investors are National Grid, a utility that serves New York, Massachusetts and Rhode Island, as well as the New York-based Ziff Brothers investment firm. The company hopes to begin construction in 2015.

There is organized opposition to the proposal, but a utilities board official said Wednesday's session was designed to answer questions, not debate the proposal. Some asked questions, however.


The Chicken And The Egg In Cheyenne

The Wyoming Tribune Eagle article about redevelopment in downtown Cheyenne offers an interesting perspective. There is always difficulty in finding the long-term tenant offering assured payments for a lender to lend funds. There is always a problem of being the “first” at the market and taking all of the risk. In Cheyenne, it seems that a few individual owners worked at appropriate development and may even be succeeding.

Detroit offers an interesting parallel. Despite the City’s bankruptcy filing, Daniel Gilbert and a few other developers have worked to find the tenants, obtain the brownfield and other tax credit financing to create a vibrant downtown community out of what was a moribund mess.

Cheyenne can do the same, and from reading the attached article, it seems that it is.

There is an alternative to development by eminent domain in some communities, but part of the process is premised upon having the land ready for redevelopment.

He uses the Hynds Building at 1602 Capitol Ave. as an example. He said while such a building may be appealing from an aesthetic standpoint, the money, commitment and risk-taking its renovation would require, from both the owner and prospective tenants, has kept it in limbo.

“You can’t go in there and start building stuff on the speculation someone is going to come in,” Dinneen said. “Banks won’t loan money because it’s crazy; to do the Hynds Building on spec would be nuts.”

Dale Steenbergen, president and CEO of the Greater Cheyenne Chamber of Commerce, agreed that the risks and challenges associated with redevelopment have caused many building owners downtown to sit idle until economic conditions improve.

He said while a handful of owners like Dinneen and Al Wiederspahn n the owner of the recently remodeled Grier Furniture Co. Building at East Lincolnway and Central Avenue n have been willing to reinvest in their buildings, many more are likely to hold off until the downtown gets some anchor businesses in.


Sometimes It Is Better Not To Speak

The threats by the Florence, Nevada, Assistant Town Manager that a claim properly documented and presented was “grandstanding” is an invitation for chaos.

The community would be far better off fighting its battle in court than doing its own form of grandstanding demonstrated by the ridiculous and inappropriate comments of its lower bureaucrats.

As my Litvak Mom used to tell me, “sometimes it is better not to speak.”

A claim for $403 million by Florence Copper, the company that wants to build an in-situ copper mine on 1,182 acres it owns off Hunt Highway, was termed “grandstanding” by Assistant Town Manager Jess Knudson in a press release Tuesday.

“The only reason to file a $403 million notice of claim to say you have a right to compensation in that amount is to grab a headline,” Knudson said in the statement.

In October, Florence filed a lawsuit in Pinal County Superior Court seeking a declaratory judgment that Florence Copper has no historic right to mine the land.

Florence Copper responded to the town’s action by filing a compensation claim for the fair market value of the land based on an appraisal by Deloitte LLP, a third-party accounting and financial firm.


A Land Swap In Lieu Of Eminent Domain

This blog is written about the proposed acquisition of the Old Dominion Boat Club in Arlington.

The most recent thoughts have been about some type of land swap whereby the Boat Club gives up all its property and obtains a replacement property nearby.

This might save the community money, and would be politically sensitive to the desires and traditions of a community and its Boat Club. Perhaps something good is in the offing.


The Washington Post

The parking lot, which sits almost exactly at the foot of tourist-friendly King Street, is “the only remaining barrier to continuous access” to the Potomac River in the eight-block Old Town area, city staffers said. That’s not exactly right; the boat club’s clubhouse itself blocks waterfront access as well, but city officials insist they have no plans or intentions to seize the 1930s-era building or its docks.

But as the city begins work on its two-year-old waterfront redevelopment plan, the lack of a central focus point to the new pedestrian-oriented front yard irked planners. When they first proposed a “Fitzgerald Park” at the site more than two years ago, public outcry forced them to drop it. Now that the plan passed the council, and passed muster with the courts after several legal challenges, the concept of a public park or square there returned.

The city, which had been quietly negotiating with the club over its parking lot since March, declared in August that its attempts to settle the matter had come to naught. In early October, city leaders declared that they were considering taking the land by eminent domain, in a state where voters had made that process more difficult.

Alexandria Times

After nearly four hours of testimony last month, the Alexandria City Council opted to extend negotiations with the boat club for another 90 days before revisiting eminent domain.

But that’s not the only deadline hanging over Bernstein and Manor’s heads: Officials are reviewing proposals for rehabilitating the Beachcomber.

Last year, city councilors turned the question of what to do with the ramshackle waterfront building over to the private sector. Bringing back its glory days as a restaurant was at the top of the list.

More than a year later, officials are evaluating at least three concepts for the building. If the city signs off on any of the proposals, it would mean an early end to Bernstein and Manor’s compromise.

While details of the proposals remain under wraps, Manor believes a restaurant is a bad fit for the Beachcomber, especially compared to the land swap plan. He pointed to the building’s location and condition as reasons for his pessimistic outlook.



Eminent Domain Muscle

The Sabal Trail transmission line is contemplated for construction from northern Alabama to central Florida. Smartly, the utility is attempting to stay within existing rights-of-way. However, 20% of the project is outside of existing rights-of-way; thereby necessitating eminent domain purchases.

In response to the question of how properties would be purchased, a Ms. Grover, of the utility company, stated “we work really well with landowners.” She then went on to note that eminent domain was a “last resort”.

Every time one reads these statements, one can readily foresee eminent domain will be used over and over again.


Suwannee Democrat

Live Oak — Sabal Trail Transmission, LLC will be hosting two open house meetings for the interested public to learn more about the underground natural gas pipeline project that is proposed to come through Suwannee County.

The public is invited to attend the meetings on Tuesday, Dec. 3, from 5 to 7:30 p.m. at the Coliseum (11th Street/Fairgrounds) in Live Oak and on Wednesday, Dec. 4, from 5 to 7:30 p.m. at Branford High School (405 S Reynolds St., Branford).

Sabal Trail representatives will be available to answer questions on the proposed facilities, land acquisition, environmental and permitting processes, construction and operation, and other aspects of the project. Representatives from the Federal Energy Regulatory Commission will also be available.

Since Sabal Trail was selected by Florida Power and Light Company to construct the gas line, the company has been doing their homework in preparing the route and conducting surveys and holding town hall meetings to inform the public of their efforts.

In the summer of this year, Sabal Trail sent out a letter to all property owners that may be affected by the project and in the letter, they asked for permission to survey their property. According to Grover, only 80 of about 500 property owners responded.

“Our ultimate goal is to stay along existing right-of-ways and where current utilities exist,” Grover said.

If the company has to negotiate with property owners, Grover said her staff has a high success rate of working with individuals.

“We work really well with landowners,” she said.

Grover also said eminent domain is always a last resort.


Ohio Moves Forward

Jerry Wray, Director of the Ohio Department of Transportation, presents a proposal not available to the many other transportation directors in the country. By bonding the toll road assets, Ohio has funds to continue with road infrastructure improvements. Congress simply is absent at this time, and Ohio has found a better way to get through the infrastructure improvement process.

Columbus Business First

Despite Congress’ continuing resolution, a leaner ODOT has managed to undergo significant projects around the state – including the I-71/670 Columbus Crossroads project – as well as generate revenue from bonds backed by northern Ohio’s turnpike, he said.

“A lot of my counterparts in other states say, ‘We’ll just wait (until) the feds pass a new gas tax or give us more money,’” he said. “In Ohio, we decided that the challenge was for us to continue our program under the circumstances we’re in.”

The department, he said, has managed to trim spending by shrinking staff, changing the way it purchases energy and even reformulating contracts for road salt.



Longmont/Dillard's Fight Continues

In one of those rare circumstances, the evidence presented to a panel is discussed during the proceeding. For Dillard’s, the National Valuation Consultants’ expert testified to a value of $6,300,000. The Court-appointed Commissioners will establish a preliminary price, one which may be appealed by either side. However, once the award is entered, the government will be required to pay over the amount considered to be just compensation prior to obtaining possession of the property.

Times-Call News

Larry Stark, president of National Valuation Consultants, said he was trying to filter out both that affect and the recent economic ups and downs in reaching his figure for Dillard's. To do that, he said, he limited himself to recent sales comparisons -- no more than two or three years -- involving businesses of a similar size, type and setting. In a separate analysis, he compared lease properties to see what kind of income an investor could expect from the property.

Both methods, he said, independently brought him to the $6.3 million figure. If anything, Stark said, his estimates may be conservative. His first group of sales comparisons, for example, were often in the $80 per square foot range; Stark assigned a value of $67 per square foot. Likewise, his income estimate of $6 per square foot split the difference of a range he set between $5.28 and $7.

LURA's attorneys pointed out that most of his valuations were from outside Colorado and none were attached to regional malls. Of the initial eight comparisons, four involved Kohl's sales, which LURA appraiser Harold McCloud said didn't make sense with a Kohl's already across the street.


Bolingbrook Fails In Candor

Bolingbrook is now seeking Illinois American Waters financial and infrastructure information. Along with the adjacent communities, Bolingbrook and its Northern Will County Water Agency has spent over $1,000,000 yet has no idea how it can do a better job for the taxpayers.

Chicago Tribune

This new action represents Bolingbrook's latest salvo against Illinois American Water, a company that has run the town's waterworks for roughly a decade and increased rates along the way.

Bolingbrook Mayor Roger Claar is also leading the Northern Will County Water Agency in a water-related fight against Illinois American's sister company.

The agency members — Bolingbrook, Homer Glen, Romeoville, Lemont and Woodridge -- have banded together to try to take control of a lake water transmission line in Bedford Park from American Lake Water Company via an eminent domain lawsuit filed earlier this year.

The Bedford Park line supplies water to Bolingbrook and a handful of other Will County suburbs.

The Northern Will County Water Agency is slated to have spent about $1 million by this spring, yet has remained mum about how its plan will save residents money.

Michael Smyth, senior manager of field services and production for Illinois American Water, said earlier this year that sister company American Lake Water's prices are by no means exorbitant.


North Dakota, Wisconsin And Minnesota Deal With A New Pipeline

The Sandpiper Pipeline is contemplated to traverse from Beaver Lodge, North Dakota, to Superior, Wisconsin. First, the pipeline will require the approval of the three Public Service Commissions of the respective States. Then, owners along the route will have to be dealt with.

Pine and Lakes Echo Journal

Enbridge Energy, a Calgary, Alberta, based company, is proposing the construction of an oil pipeline through McKinley, Bull Moose, Pine River and Barclay townships in Cass County.

The proposed line, called the Sandpiper, would stretch 610 miles from Beaver Lodge, N.D., to Superior, Wis. The proposed route of the buried pipeline follows already established highline corridors in many places and crosses Highway 371 near mile marker 67 north of Pine River. The line would be a minimum of 24 inches wide and could transport 225,000 barrels of petroleum products per day.

The proposed route crosses mostly pasture land and forest land and follows current easements held by power companies with high lines, though it does cross under the Pine River north of Norway Lake.


Is Underground Water Trespassing?

Moving underground water would arguably follow animal ferae rules learned during our first days of law school. When one is hunting the fox, it is assumed that the fox, coming from the neighbor’s property, is a wild animal and therefore not subject to the ownership of the neighbor whose property the fox came from. With water, a similar theory often applies. However, when the water is contaminated one must have the right to seek relief from that individual who knew the water offered great risk.

Underground water contamination is analogous to situations in which water is diverted above ground, creating flooding.

The New York Times

A decision by the state’s highest civil court could have major implications for both. The Texas Supreme Court is scheduled to hear arguments on Jan. 7 in a dispute between a company that operates injection wells in Liberty County and a nearby rice farm that says wastewater from those wells has migrated into a saltwater aquifer below its land. It calls the migration trespassing, for which it should be compensated. Among several smaller questions, the court will weigh a broad one: Just how far below the earth’s surface do property lines extend?

“This is the classic battle between the two quintessential values that are in direct conflict with each other,” said Matthew J. Festa, a professor at the South Texas College of Law. “On a lot of different levels, this case could make some new law.”

The well operator and its supporters, meanwhile, say the waste will make the groundwater no more polluted than it is naturally. And they say it is a moot point because recognizing a subsurface trespassing argument is nearly unprecedented. The appellate court in Beaumont is the only court to have done so.

The suit is flying under the radar of property rights advocates. No group has filed a brief in support of the rice farm, but the Texas Farm Bureau, which typically supports landowners in such disputes, said it was looking at the case after recently learning of its return to court. (The Texas Farm Bureau is a corporate sponsor of The Texas Tribune.)


Property Owners Do Things The Right Way - They Watch The Easements

As a participant in too many cases in which the dominant estate, meaning the utility easement holder, obtains complete control of a property, one can only hope that the Kansas property owners fully comprehend how important it is that the easement provide clear restrictions on the easement holders’ (utilities) use of the property. The notion that these local farmers will find local lawyers specializing in eminent domain is simply the right way to proceed. John Hamilton of Topeka is a great example of one.

The Marysville Advocate

“Kansas will benefit from the project,” he said. “Particularly Kansas communities like Marshall County will see benefits from the construction of the transmission line and the property taxes that will be collected.”

Clean Line is still working to get its transmission line approved in Missouri and Illinois, Lawlor said. Should Clean Line get the line approved in those states, Lawlor said, construction will probably begin in Kansas in 2016 or 2017.

Members of CLEANR, a group of citizens in Nemaha and Marshall counties who oppose Clean Line’s plan, say they are considering appealing the KCC decision, said CLEANR member Rick Strathman, a Baileyville farmer.

“We are very disappointed in the decision. We kinda expected it after the way farmers were treated by the KCC. We were only allowed to make five-minute opening statements,” he said. “We are now trying to get landowners together to work on the easement agreements, so that we can get the best deals we can. We have lawyers who specialize in eminent domain and we’re working on easements.”

Any landowners affected by Clean Line’s transmission who would like to receive more information on easements can contact Strathman at 785-548-6280.


Troy Transit Center Fiasco Continues

The Michigan Supreme Court has denied the City of Troy’s right to simply obtain a piece of property that it failed to properly close on.

Now, Troy faces an acquisition through an eminent domain process.

No offer has yet been made because no appraisal has yet been prepared. To simply say that a governmental agency wants a piece of property, without consideration of the cost, is amazing. At the same time, why worry when the City that is doing the acquisition will not be paying the cost.


Macomb Daily

No city tax dollars have been used for construction. Grigg Bluhm said the Federal Transit Administration approved a request Monday to repurpose a $1.6 million grant to be used for purchasing the land from Grand/Sakwa.

If the Farmington-Hills developer declines the offer, the city would likely initiate condemnation, Grigg Bluhm said.

Alan Greene, attorney for Grand/Sakwa, said the development firm hadn’t received the offer from the city, as of Wednesday. He said the company still planned to appraise the plot of land before negotiating a purchase price.

The high court’s decision to not hear the case was the latest hitch in the city’s decade-long effort to construct the transit center. The nearly-completed $6.3 million project has received the support of Gov. Rick Snyder, a Republican, but it was a focal point in the recall effort of Troy’s former tea party Mayor Janice Daniels.


Ypsilanti Water Street Project Gets A Relatively Positive Story

The Ann Arbor News has provided a relatively positive story about the Ypsilanti Water Street project. The money was available, paid by other sources, being the State and Federal Governments, so a project occurred. The problem is that a condemnation that started over 20 years ago has yet to see its first successful development. For whatever reason, the part of Ypsilanti in which the Water Street project is located is simply not ready to redevelop. While near Eastern Michigan, the project is not quite close enough to the U campus.

Over the years, one would hope that the Water Street project will create new development in Ypsilanti.

The Ann Arbor News

In September of 2004, the city learned that deep soil contamination from businesses that operated on the site would affect the plans to include condos along Michigan Avenue.

"The chief concern is the cost," Ypsilanti resident James Fink told the Ann Arbor News in 2004. " It's a good project but can the city afford it?"

By 2004, the city had spent about $17 million, $4.7 of which were from grants, on the project. The city estimated at the time that costs would balloon to about $25 million. Yet, once fully developed, the city estimated the property would generate about $3.7 million a year in property tax revenue.

In 2004, the city owed about $27 million in loans for different projects, including the Water Street property and water main replacements, city records show.

At this point, Koryzno still said the city didn't have any plans to use general fund money to help cover the project.

The Ann Arbor News reported that for more than 200 years, the Water Street area was home to several industrial related businesses and the former Ypsilanti Press. In the 1980s, city leaders considered demolishing vacant properties on the site, and that work began in 1998.

Environmental testing revealed that some of the contamination was deeper than predicted. It was determined that some areas along Michigan Avenue were too contaminated for residential use and Biltmore reduced its projected number of living units from 872 to 721.



Hard To Break Old Habits

Mayor Finizio, elected on a campaign to stop New London Development Corporation in its takings for private benefit, has abolished the agency. However, in its stead, the Mayor established a new agency which will probably do exactly the same thing, but with a “new” name.

It is hard to teach an old dog new tricks, and too often the dog returns to its old habits.

The Day

The mayor did not abolish the agency, instead renaming it Renaissance City Development Association, apparently using the kicker line from that same election night acceptance speech, in which he called for New London to become the Renaissance City.

He should know a renaissance infers a fresh start, not renaming the old and shuffling the chairs around the table.

Why does it matter? After all, clearly New London would not dare to use eminent domain again to take people's homes for economic development.

Part of it is certainly the cleansing ritual of starting new, a catharsis candidate Finizio clearly promised and hasn't delivered.

More important, though, the thing I think voters had in mind but that the mayor doesn't grasp, is that people were offended not just that people's homes were taken but that it was done in a high-handed way by an agency enabled by the City Council but not accountable to voters and headed by someone from out of town.


Oklahoma Water At Issue

Today, this blog discussed Idaho’s water issues and a recent seminar covering the topic.

The importance of water is exemplified by the Sulphur challenge to the Oklahoma Water Resource Board’s decision to limit water removal from the Aquifer.

We will find these water issues being raised everywhere as we move forward.

McAlester News

Two Sulphur residents are challenging the Oklahoma Water Resources Board’s decision to limit the amount of water that can be withdrawn from the Arbuckle-Simpson Aquifer each year.

Carolyn and John Sparks want the board to reconsider its order setting the maximum annual yield for the aquifer. The order, which was issued in October, capped the MAY at 78,404 acre feet.

The MAY would allow communities and landowners with water permits to withdraw up to 0.20 acre feet — about 2.4 inches — per acre per year. That number, known as the equal proportionate share, would reduce the amount of groundwater that permit holders can take out of the aquifer each year.

The board has not devised a time frame for implementing the order, but officials are working on rules governing implementation, well spacing and other issues.

The Sparkses, who hold a permit for groundwater to irrigate their pecan trees, are worried that the MAY order will limit the amount of water they can use, Carolyn Sparks said.

“They have taken control of our groundwater, and it results in controlling how we use the surface,” she said Friday in a phone interview.

Sparks said she hopes the board will Increase the amount of groundwater that can be withdrawn from the aquifer each year.


Idaho Seminar Covers Water Issues

The Idaho Water Users Association (IWUA) held its annual fall water lawn resources seminar.

The water issue is a serious one everywhere in the Country. Idaho is in front on the question. There will be a day in which water has the same precious value as oil.

Magic Valley

“This will be a seminar packed with discussions and presentations that deal with truly front burner issues. The water shortages from the continuing drought coupled with some potentially divisive regulatory quantity and quality proposals have really generated enormous interests in the panels and presentations,” said Norm Semanko, IWUA executive director.

A copy of the complete seminar program plus registration information for the two-day IWUA seminar is available on line at

The Idaho Water Users Association consists of approximately 300 irrigation districts and canal companies, agri-businesses, public water supply organizations, professional firms and individuals from around the state that manage water supplies for more than 2 million acres of irrigated Idaho farmland.


Somerville, Massachusetts "A Last Resort" Sounds Familiar

All too often, acquiring agencies claim that eminent domain will only be used as “a last resort”. Frequently, the agency, whether it is a utility or public entity, then tells owners “we are simply going to take your property, so why do we really have to negotiate?”

The term “a last resort” too frequently means “the easy way out”.


BOSTON — In an open letter (PDF) to residents and businesses, Somerville Mayor Joseph Curtatone calls potential land takings by eminent domain in Union Square “a last resort.”

The city has laid out seven redevelopment blocks in the area that could be taken as it prepares for the opening of a new Green Line stop, which is expected to open in 2017.

Some of those acquisitions, like those where the MBTA station will be built, have already been completed. Others may be taken by the city and given to a developer, with the aim of creating 4,300 new jobs and 850 new housing units in the Union Square area by 2030.

Critics say the plan goes too far and would uproot businesses that have been in the area for decades. Some have indicated they plan to fight any eminent domain takings.


Meadowbrook Golf Course Conflict Begins

The Meadowbrook Golf Course filing has effectively occurred with the passage of a resolution to take the property.

The 80 year old, four generation golf course operation is about to end barring a successful objection in the court system. That is unlikely. One has to wonder how valuable a 53 acre piece of property is in any type of organized setting. Will there be no golf courses as infrastructure development continues?

Phoenixville Patch

During an interview in the clubhouse of the nine hole golf course founded by his great grandfather in 1933, Bruce Campbell asked Patch to get that message out to everyone and anyone who will listen.

"We don't want to sell it! Underline that and put an explanation point on it. I'm not ready to retire," the 62-year-old fourth generation golf course owner/operator said. Bruce Campbell and his family are living a small business nightmare, following the vote last week by the Phoenixville Area School District Board to take the 52 acre golf course under the laws of eminent domain.

"I think it's wrong on so many fronts, it's sickening," Campbell told Patch a few hours before he along with other Campbell family members, golf club members, a planning commission chairman and golf club users filled a meeting of the Phoenixville Area School District Board of Directors.


Ohio Fights Award

While the government recognizes its liabilities, the State of Ohio is fighting each and every damage award.

It is amazing to see this delay continue for so long. However, the government has the checkbook and the appellate process is always available.

The Daily Standard

But not without a fight over the dollar amount.

"We're responsible for taxpayers' money," said Mike Williams, special counsel for the Ohio Department of Natural Resources. "That's why, with all due respect, we are appealing the juries' decisions in the cases that have been presented. We are fiscally responsible to the taxpayers and need to work in their best interest."

ODNR has filed a motion for an amended petition in at least one lawsuit from earlier this year that awarded a local couple, Gale and Nelda Thomas, $363,000. The state also is appealing another lawsuit by David Karr, who was awarded $631,000 by a Mercer County Common Pleas jury. The Karr appropriation trial is scheduled for Dec. 19, court records show; the Thomas trial is scheduled for March.

The attorney for the Thomas and Karr families says ODNR is "dragging their feet," and has twice been found to be guilty of violating the landowners constitutional rights.


Will Alabama Allow PSC Approval?

It is interesting that today this blog discussed the Methow Valley issues because owners are raising the issue of whether the health and environmental impacts under Alabama statutory law will be superior to the Public Service Commission approval of a line. Again, each State follows its own Constitutional and statutory framework.

Montgomery Advertiser

The commission held a hearing on the pipeline Oct. 30 in Mobile before taking the vote Tuesday in Montgomery. At that hearing, some people expressed concerns about possible environmental impacts.

Commissioner Jeremy Oden said Tuesday state law does not give the commission authority over environmental, public health or eminent domain issues involving the 36-inch pipeline.


Is State Land Ownership Superior To Power Lines?

The very important issue of the power of the State of Washington’s control over its own land in light of an approval to acquire state parkland is an upcoming issue in the Washington Supreme Court.

Every State legislates its own laws and rules as to how and when government owned property may be acquired. Generally, this is done by statute. However, if there is a Constitutional provision specifically establishing the rights of the parties, the provision will prevail over any statute.

Methow Valley News

The PUD contends that the powerline serves a necessary, public use and is compatible with the state’s current use of the land, some of which is leased for grazing. The Okanogan County Superior Court and the Court of Appeals both ruled in the PUD’s favor.

The PUD began condemnation proceedings three years ago, after being unable to negotiate an easement with DNR for a 100-foot strip across 12 miles of state land for the powerline.

The Supreme Court’s ruling could be the final phase in the decade-long court battle over the Methow Transmission Project, which has been challenged on grounds of its environmental impact and, most recently, by private property owners and the state over the PUD’s efforts to condemn land for the route.

The transmission line would extend 28 miles from Pateros to Twisp and create a second route to bring power to the Methow Valley, which is currently carried by the 65-year-old powerline over Loup Loup Pass.



Holland, Michigan, BPW Acquires Property

The City of Holland, through its Board of Public Works, is determined to redevelop the Fairbanks/Sixth Street area to expand its natural gas power plant. To date, the City has carefully avoided eminent domain proceedings. However, there are a few substantial properties remaining.

Holland Sentinel

For the BPW’s part, “We’re down to just a few properties at this point,” General Manager Dave Koster said. “We’re really down to the tail end of this.”

Including the Atmospheric Processing building — the site at 100 Fairbanks Ave. that was originally bought as the location of the new plant — a total of five properties have been closed on, BPW Business Services Director Dan Nally said.

Star Excavating “is ready to go,” Nally said, but there was unexpected paperwork to be dealt with, and the owners there are working with the city attorney’s office to deal with it. Offers of just compensation have been approved by the property owners and the BPW for most of the sites, but closing has not taken place.

There are four properties that have not been dealt with yet, Nally said. One of those is CSX Rail, which has railroad lines near the site.


On the Baltimore Comeback

Jay Brodie has written an interesting article about the creation of the Baltimore comeback. It started in 1954 when a major department store closed because of the suburban movement. The City Fathers, determined to make the area viable, presented a plan for the redevelopment of almost two square miles of the City. The Harbor Area rehabilitation, which did include condemnation, moved forward. This is far different than simply trying to move poor people out of their neighborhoods in order for properties to be sold to politician’s friends and relatives. The harbor development was nascent in the process of redevelopment, yet the later experiences of “blight condemnation” did not necessarily render favorable results.

Baltimore Business Journal

It was also in 1954 that Baltimore had a portent of the future. The respected O’Neills department store, a downtown anchor, announced that it would soon close. Its customer base had departed for the suburbs.

Responding to this alarming news, other retailers — and banks — formed the Committee for Downtown. Quickly, in partnership with the Greater Baltimore Committee, with membership from the CEOs of major companies, money was raised to recruit a team of city planners (named the Planning Council of the GBC). The mission given to the planners was to rapidly design a plan for the future of 1,000 acres in the center of the city.


Kentucky Fight Turns Nasty

Jim Waters, President of the Blue Grass Institute a “free market” think tank, explains that while he is at the forefront of protecting property rights, the taking of private property by private pipeline companies fulfills the constitutional parameters.

The reality is that sometimes “extremism” is only in the eyes of the beholder.

Mr. Waters has been an active participant in the Libertarian community. It seems out of place for him to be, without any underlying rationale, arguing that the private takings are valid.

Who supports this Kentucky “Think Tank”? Are some of the major supporters the same utilities that are now about to acquire the land through the eminent domain process?

When these newspapers publish articles, they should identify whether these people are out of the coal industry fighting gas transmissions or out of electric industry supported “think tanks”. Every time one sees this sudden claim of “extremism” one wonders where the extremism is.

Yet while I strongly believe in opposing abuse of eminent domain, I’m not convinced that additional legislation is needed to keep it from being used by the consortium now purchasing easements for the Bluegrass Pipeline, a 1,100-mile pipeline that will carry natural gas liquids from the Marcellus and Utica shale-producing areas in Pennsylvania, West Virginia and Ohio through Kentucky to the Gulf Coast.

For sure, private companies should not be able to use eminent domain to acquire private property from individuals who either want to sell at a higher price, or are not interested in selling at all.

Kentucky’s General Assembly passed legislation in 2006 to clarify that point and protect landowners after the Supreme Court ruled that the city of New London, Conn., could employ eminent domain to take away the homes of seven families in order to benefit a large private development.


The Problem Of Statutory Prescriptive Rights

As noted in the attached State Bar of Wisconsin article, the 66 foot Rule applies in many situations. This means that, while owners have successfully utilized property within 33 feet of the centerline, it does not give these owners a prescriptive right to maintain ownership and use. When the government needs the property, it may utilize the 33 feet from the centerline with or without owner approval and without owner payment so long as the State statute provides the delegation.

State Bar of Wisconsin

In a letter, the village told property owners that eminent domain (and just compensation) wasn’t necessary because the village already had title to the disputed land. That is, the village said the land proposed to be improved was already part of a “public highway.”

The historic district roads were not recorded as “public highways,” but Wis. Stat. section 82.31(2)(a) states that “any unrecorded highway that has been worked as a public highway for 10 years or more is a public highway and is presumed to be 66 feet wide.”

The “public highway” label basically gives municipalities a 66-foot-wide permanent easement. To win the case, the residents had to rebut the presumption that the unrecorded highways at issue in Brown Deer’s historic district were 66 feet wide.

With respect to three properties, the circuit court ruled that the residents successfully rebutted the presumption that Brown Deer’s “public highway” title extended the full 66 feet because buildings on those parcels clearly encroached upon the disputed areas.


Owner Provided Opportunity To Show Potential Use

Almost every jurisdiction allows owners to show alternative potential uses of a property being acquired by eminent domain, so long as the uses are reasonable and may occur within a reasonable amount of time. In New Jersey, the State Supreme Court upheld the right of the owner to show that the former gas station site might well be redeveloped to a different use which would provide a higher value.

North Jersey

The owners demolished the station three years later with the intention of building a bank on the corner property, which would require a variance. However, the borough under a previous administration moved to acquire the land through eminent domain for use as a park, using condemnation proceedings.

While the borough assessor valued the land at approximately $1.5 million, testimony during the plan review valued the land at $5.25 million because of possible zoning variance that could be obtained for its use as a bank.

The jury awarded $5.2 million for the purchase of the property and when the borough appealed, the Appellate Division of the State Superior Court upheld the decision in March 2012.

The case went on to the state Supreme Court and has been contentious for the borough with the potential to cost taxpayers significant dollars. The borough owns the property, it’s just a matter of what they will pay for it, Mayor Samuel Raia explained.


Sheriff Reviews Robbins' Short Circuit

Because of the constant corruption in Illinois, the Cook County Sheriff Inspector General will determine whether the limestone quarry proposition in Robbins is legal and appropriate.

Simply a few donations do not a story make. However, one must wonder how the Mayor of a City is selling away the rights of his resident property owners so quickly.

Southtown Star

Earlier this month, the SouthtownStar revealed that Robbins had approached state legislators about introducing a bill in the fall veto session to allow quick-take authority to acquire homes and businesses for the planned development.

Robbins has entered into a public-private partnership agreement with Riverside-based ALM Resources to create a limestone quarry on 60 acres, followed by a 169-acre underground mine, asphalt and concrete plants and a therapy horse ranch. A waste-to-energy incinerator constructed in Robbins more than a decade ago would be part of the development.

Robbins would receive 5 percent of the sales from all the limestone mined, according to ALM, but in exchange one of the poorest municipalities in Illinois would turn over control of 320 acres to a private-public partnership called Robbins Resources LLC.

Hundreds of Robbins residents turned out for a community meeting last week, and many demanded that the village reconsider the deal. Many residents and public officials have said they were unaware of the extent of the project before newspaper stories appeared.


National City Continues To Beat On Owners

National City, a community which has a legendary history of overreaching in the use of the eminent domain process has lost another case in the California appellate courts. Simply declaring a decent property blighted did not mean the property was blighted.

These blight issues are tough. Most courts follow the definition of blight and are flexible in allowing eminent domain proceedings to occur when a property is claimed to be blighted. However, in this situation, when it came to the National City Boxing Club, the appellate panel saw otherwise.

San Diego Source

California’s Fourth Appellate District reaffirmed a trial court ruling Wednesday that the city of Nation City violated state redevelopment law when in 2007 it declared a boxing gym and mentoring center blighted – along with nearly 700 other properties that surround the facility.

The court also ruled that National City bio9lated the public records act by refusing to turn over its documents to the gym that is formally known as the Community Youth Athletic Center. The CYAC, along with the other properties, have been a potential target for eminent domain for years.

“This decision is significant because it agreed that the 2007 blight designation was invalid and because this is the first ruling applying the 2006 legislative reforms that were enacted to prevent exactly the sort of abuse seen in this case,” said Institute for Justice Litigation Director Dana Berliner, who argued on behalf of the CYAC before the state Court of Appeal, in a statement. “Even though redevelopment agencies have been abolished, many legislators are working to bring them back, and today’s ruling will be the major property rights decision under an new redevelopment scheme.”


Town Of Florence, Nevada, Takes A Huge Risk

The Town of Florence is attempting to stop the copper mine development through the condemnation process. One has to question whether this is a public use.  Further, one has to question whether this Town is really ready to pay all of the money it will owe when it takes the property. Common sense would say otherwise, but sometimes the short and emotional thought process puts community leadership in a position where they are responding to events in a way that they should not.

Phoenix Business Journal

Marquette County, Michigan, Road Comission Attempts Compromise

The Marquette County, Michigan, Road Commission is attempting to obtain a compromise concerning a proposed roadway. The proposed roadway is being built in order to create a bypass of the City traffic for the opportunity to continue in operation.

The mining company is potentially a major player in continuing employment gains in the Upper Peninsula of Michigan. At the same time, the proposed roadway does have an affect on the aesthetics of the area.

One thing that raises concern is that trees are cut only ten feet on each side of the road. This is despite the recognition that once a County Road, the County will have an opportunity to do anything it wants for 33 feet on each side of the centerline. If the County intends to restrict its own use of the property, it should be clear and binding on the County in order that the adjacent property owners know what their rights and obligations are.

The Mining Journal

Road commission engineer-manager James Iwanicki recommended the board approve the revised plan and hold a public information meeting when engineering plans are 70 percent complete.

"The board has been listening to you folks and we will continue to do so," road commission Vice Chairman Dave Hall said.

Among the most significant changes to a plan released about a month ago included limits to tree cutting from County Road 550 to the "Blind 35" area. Trees will be cleared 10 feet away from each side of the road.

"We believe there is some clearing that needs to happen so that we can build an adequate road cross-section, but we're going to do that all within the road right-of-way and on the existing road footprint," Iwanicki said. "That was probably the biggest change there."


Applying For The Same Use

There are those cases which hold that when an agency acquires a piece of property for the same use that existed previously, there is no public use involved. See City of Detroit v Shizas, the 1954 Michigan decision in support of this position.

In all likelihood, that is no longer the rule in the vast majority of the states. Yet, it seems offensive that the City of Seattle is simply acquiring for a similar or the same use. Potentially, the City should be asking what the benefit is to the community in its analysis of what it should pay the owner. Clearly this is not the general rule of eminent domain, but in this condemnation setting it may be appropriate.

Fox News

City officials have said that they plan to keep the lot for surface parking, even though city and state transportation documents call for structured parking along Seattle's central waterfront area, including Woldson's lot, the newspaper reported.

Gary Beck, president of Republic Parking Northwest, which operates the lot, told the Puget Sound Business Journal that Woldson once turned down a $20 million-dollar offer for the property.

“It makes no fiscal sense to me to have the city condemn a parking lot to make more parking,” Beck said.


Chicago TV Station Discusses "The Fuss Over Fracking"

Chicago TV Station WTTW provides an interesting article about fracking. The comments made illustrate the economic benefit fracking provided in the form of tax revenue and avoidance of foreign oil.

Fracking has its problems and certainly raises our concerns. However, the long-term concerns seem to be outweighed by the substantial short-term benefits to be availed.

Chicago Tonight

In recent years, the prospect of an Illinois oil boom has heated up, thanks to the advancement of “horizontal hydraulic fracturing,” also known as “fracking.” Geologists believe oil and gas is locked in a layer of shale rock more than a mile below the surface, and well below fresh water aquifers.

It’s called the New Albany Shale formation and runs across portions of Illinois, Kentucky and Indiana. It can only be accessed by horizontal fracking - which involves blasting cracks in the rock formations and then injecting water, sand, and a small mixture of chemicals to force the extraction of both oil and gas. The well is first dug vertically, and then curves horizontally and can run for miles beneath the surface.

Smaller scale "vertical fracking" has been going on in Illinois for years - but it doesn't produce the volume that horizontal fracking promises. It's the same process that has led to an economic boom in North Dakota.

“In North Dakota, $70 million a day of oil is coming up,” said Rep. David Reis, a Republican from downstate Olney. “You take the royalties from that, severance from that, that's a lot of revenue for the state.”



Robbins Mayor Makes The Normal Comment

In the proposed underground condemnation, the Robbins Mayor stated to the owners “you will not be shafted”. This is somewhat analogous to the normal statement that “we are the government and are here to help you”. Realistically, owners have a right to the use of their property. Robbins may want to make a quick buck, but where does that place these owners?

In the end, this author believes the City will likely attempt to pay owners “fair market value” for their total properties, thereby diminishing their right to a fair and appropriate payment.

South Town Star

Jim Louthen, who is spearheading a redevelopment project that would include a limestone quarry and underground mine in Robbins, made it clear that he didn’t like my questions.

I was asking about feasibility studies, finances, what would happen if his company, ALM Resources, went bust or just decided to pull out of the controversial project.

The extraordinary plan proposed by Louthen and adopted by the village board would eventually consume more than 20 percent of the small village.

The underground mine would be dug 600 feet beneath hundreds of single-family homes. And the plan calls for Robbins to use its powers of eminent domain to take property and hand it over to ALM.

So I was wondering if residents could get stuck with a partially dug hole in the ground and nothing else.

Louthen apparently had other ideas of how the meeting, which he had arranged with myself and SouthtownStar reporter Casey Toner, should go. He wanted to talk about the estimated $140 million in revenue that would benefit Robbins over the next 40 years.



Columbia Airport Sings The Same Old Song

All too frequently, communities propose to expand their airports in order to obtain jet traffic, arguably to increase business because rich people can show up in town in their jets.

This is sort of a “read my lips” story. The problem is that there has to be a basis for a business development other than someone being able to land their big jet at the local landing field. This frequent reason for expanding airports is simply not an accurate reflection of market forces. Realistically, airports need to be expanded in order to be safe and allow traffic. The argument of commercial development is simply not a real factor.

Register Star

Richards said that without the proposed safety zone, there would be some aircraft that, landing to the south, could not use runway 21 safely.

“Most of the wind comes out of the north over the proposed safety zone, so most landings are from the south,” he stated. “If the wind changes and comes out of the south, however, then a landing to the south on runway approach 21 for transient corporate pilots might not be attempted, certainly not if the runway is displaced.

“If the safety zone is not approved, and the runway is displaced by 800 feet, and noted in flight charts, some corporate pilots will choose to land at Albany International,” Richards wrote. “This could impact corporate decisions to locate business development sites in Albany County and surroundings, instead of Columbia County, and curtail arrivals of some of the corporate flights noted in item No.3.”




Is Arlington Planning A Side Attack On The Old Dominion Boat Club

In reading the most recent of Washington Post articles, one can sense that the City of Arlington knows that it should not simply buy the 133 year-old Boat Club’s parking lot in order to build its own development. Rather, one gets the sense that the “police powers” of flood and other health and safety concerns will be the basis for acquiring property for an otherwise private use.

Washington Post

“We were here when no one else was. This is our property,” said Eric DeSoto, chairman of the club’s board of governors. “We have people who live out of town, we have employees, we have events and functions.”

The city, though, says that the parking lot is keeping it from fully realizing a waterfront plan, which passed the City Council 19 months ago. The plan seeks to turn the eight blocks of Old Town’s waterfront into a more lively and accessible stretch of parks, small hotels and retail space.

The redevelopment would also address the area’s long-standing problems with flooding and sewer overflows. The project is imperative, supporters say, both for economic growth and for completing the evolution of the area from a series of loading docks and storehouses into something friendly to the tourists who wander down King Street and find themselves funneled into a narrow city park that’s hemmed in by the boat club and its parking lot.

DeSoto, who said it was the club that restarted negotiations with the city in March, said city officials cut off the talks too soon.

Last week, the club made what its leaders called a major concession: allowing public walkways on the property. One will be built atop a retaining wall along the river, the other is a sidewalk along the street side of the parking lot.


Williams Co. Intuitively Takes The Right Route

One of the problems with the proposed Williams Co. route was its affect on two Roman Catholic properties in central Kentucky. Williams Co. chose to take the best route: i.e., simply go around the properties.

On the one hand, the Company may have others fighting the project with the change of route. Yet, the political outcry in going through the Church property presented its own additional contentious disagreement.

The Koch family is directing its Williams Co. to take the easiest political route.

Earlier this blog has also covered the Commonwealth Attorney’s notification that property owners are not required to grant easements because there is no eminent domain action yet available to the pipeline company. Williams may not even have the proper authority to acquire properties via the condemnation process. Yet, one wonders whether the pipeline company is a force which cannot be defeated in its decision to move forward with the route. In all likelihood, the utility will end up obtaining relief from FERC.

Cincinnati News

The path would bypass two properties owned by Roman Catholic communities in central Kentucky. Last month, the company said it would stay well north of the 780-acre tract in Marion County owned by the Sisters of Loretto. Williams spokesman Tom Droege said Tuesday that the company is looking for a route around the 2,500-acre property owned by the Abbey of Gethsemani in Nelson County. Droege said the monks who live at the abbey have refused to allow surveyors on their land.

"We've respected their wishes and pursued other routes," Droege said.

The company is expecting to spend $30 million to $50 million on the 50-foot wide easements purchases in Kentucky, according to an informational letter from Williams Co. manager Rob Hawksworth that was given to The Associated Press.

The company is also currently securing easements in Ohio, Droege said.



Nashville Landowner Finally Prevails

After a long fight, Tower Investments has succeeded at the Supreme Court level in retaining the $15,000,000 jury verdict it was awarded last year.

One admires this company for fighting on in this way for so long. Clearly, the assets of the company were utilized to protect what it felt were its rights to just compensation. Congratulations should be offered.


Tower Investments vice president John Pierce said that by fighting to the end, which cost the company millions of dollars, Tower accomplished something many other landowners cannot afford to do.

"If you just have a parcel of land or a small business or a farm and all of a sudden the government comes in and you are subject to condemnation you are looking at putting out hundreds of thousands of dollars, if not millions, in legal costs that you will not be reimbursed for," Pierce said.

"Not a lot of people can do that.  That is the saddest thing to me about it.  I look at it from the standpoint that we are fighting for citizens' rights to get fair market value for their property, and a lot of people aren't able to make that fight."

Kentucky Commonwealth Attorney Provides Warnings On Pipeline Easements

In an amazing demonstration of its objection to the proposed Boardwalk Pipeline Partners' eminent domain proceeding, the Kentucky Commonwealth Attorney has forewarned property owners about what they should and must do in order to protect their interests when owners consider signing easements with the pipeline company.  This letter to the Editor offers an interesting and important perspective.

Landowners contacted by Bluegrass Pipeline Partners LLC or the Williams Company about selling an easement across their property for the construction of a 24-inch pressurized natural gas liquids pipeline have questions about whether granting an easement is in their interest.

The products that will be transported are natural gas liquids, not the natural gas used to heat our homes. The liquids are a mixture of hydrocarbons that are flammable and combustible, can contaminate land and groundwater, and pose an asphyxiation risk if the pipeline leaks.

Landowners are wise to consult an attorney, insurance agent, mortgage holder, and tax preparer, because granting an easement may affect the value and insurability of property, tax liability for payments received, and mortgage holder's interests.

The easement language you may be asked to sign was written to benefit the pipeline company, and will likely not contain conditions that strictly limit the rights granted.

 No landowner should sign an easement because of a direct or implied threat of eminent domain (condemnation). The Kentucky Attorney General, Energy and Environment Cabinet Secretary, and others do not believe that eminent domain powers exist for this pipeline project.

We encourage you not to rush into a decision to grant an easement. Once an easement is granted, it is unlikely you will be able to change or add terms or conditions.

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Opportunity Corridor Eminent Domain Process Creates Concerns

In an interesting article written in Crains Cleveland Business, two of the owners explained their serious concerns about the potential use of a “heavy hand” by the Ohio Department of Transportation.

These problems are real.  It is very tough for a public agency to fairly protect owners because the administrative process and limitations set forth in the Federal relocation process provides little framework for equity.

Cleveland Business News

Todd Shaker, owner of The Final Cut, a business that turns raw fruit into bite-size pieces it sells to institutional food service customers, likewise is worried about his building at 8630 Evins Ave., which also is slated for taking under eminent domain.

At a public meeting last Tuesday, Oct. 1, to update neighborhood residents and business owners on the Opportunity Corridor and hear their comments, Mr. Shaker tried to explain to an ODOT staffer that he couldn't use some equipment in his current building in whatever new building he would move into because he couldn't afford the downtime a move would entail. He would need to buy new.

“A new building doesn't make me whole,” he told a reporter later, adding, “We want to stay in Cleveland.”

Michigan Also Gets Involved in Fracking

The permit approval process in Michigan leads one to wonder whether any regulation exists controlling the safety and environmental concerns of fracking.  If people do not know that there is fracking occurring in an area, are they required to check the website of the Department of Environmental Quality weekly for approvals?

Fracking is going to occur as long as tax monies can be raised and we have a public policy supporting energy production.  At the same time, one has to wonder whether there will be a balance involving safety.

Livingston Daily

Companies permitted to drill for oil and gas in Michigan are only required to notify county clerks and residents where wells will be drilled — including whether hydraulic fracturing will be used — a state official said.

Besides that requirement, state law leaves it to gas and oil companies to determine how much they tell residents about their drilling plans, explained Mark Snow, supervisor of the Department of Environmental Quality Permits and Bonding Unit.

Some Conway Township residents said they were not made aware of GeoSouthern Energy Corp.’s approval to use hydraulic fracturing, or “fracking,” when they were approached by the company for mineral-rights leases related to a nearby exploratory well project.

New Jersey Sand Dunes Project Continues

After obtaining a reversal of a $375,000 award in the New Jersey Supreme Court, the State is moving forward with its beach replenishment project. 

One must look at the underlying facts to recognize the issues at hand.  People do not want to have any interference with their use of property.  At the same time, people do not desire to simply be subservient about payment.  Yet, the real question is one of whether there are damages to be paid. 

The Karans, owners for a while of the $375,000 verdict, sold their claim for $1.  One suspects that they were burnt out by the process and maybe their lawyers.

“It is a proven fact that having dunes along our coastline makes everyone safer, and today I’m acting to move the building process forward,” said Christie. “As we rebuild from Superstorm Sandy, we need to make sure we are stronger, more resilient and prepared for future storms, and dunes are a major component of this process. I am doing everything in my power to get them in place as soon as possible. We can no longer be held back from completing these critical projects by a small number of owners who are selfishly concerned about their view while putting large swaths of homes and businesses around them at risk.”

The governor also mentioned the settlement, 24 hours prior to his order, among the DEP, Harvey Cedars borough and Harvey and Phyllis Karan, owners of a Harvey Cedars oceanfront property, “in which the couple agreed to give the easement to the town in return for the sum of one dollar. The settlement, after years of litigation, was reached after the Supreme Court in July set aside an earlier verdict in the couple’s favor awarding them $375,000 for the value of their easement,” the release explains.

“The impact of that court ruling should now be clear to anyone who thinks they were in line for a big government check,” Christie stated. “Sandy changed everything. It’s time to do the right thing to not only protect your own property, but the property of all your neighbors.”

As Mancini noted, “I think it’s great the Karans settled for $1,” but he doesn’t believe that guarantees all future settlements would be as small. However, said Mancini, “I also don’t think we’ll be seeing any more awards hit five figures.”

The Dam Problem In Michigan

The Detroit Free Press has covered an interesting issue, one which offers tremendous risk to the community if not dealt with soon.

The dams in Michigan are simply too old and are not being adequately repaired.  The loss of the dams or their further deterioration may cause not only financial concerns for those damaged by the flooding but risk to life.

Detroit Free Press

The Michigan Department of Environmental Quality oversees 88 potential high-hazard dams in the state — and all but six of them are approaching or past 50 years old, the average engineered lifespan for a dam. Overall, more than 90% of Michigan’s nearly 2,600 dams will reach or exceed their design life by 2020, the American Society of Civil Engineers stated in a report giving Michigan a D grade on the condition of its dams.

“It’s infrastructure in our country today — not just dams; bridges, highways. That’s a huge, ticking time bomb in my mind for the entire country,” said Byron Lane, chief of the DEQ’s Dam Safety Unit.

Of the 22 state-managed, potential high-hazard dams in Wayne, Oakland, Macomb, Livingston and Washtenaw counties, inspections show all in satisfactory or fair condition. But all of the dams are near or more than 50 years old.

Most Michigan dams no longer serve the purpose for which they were built in the late 1800s or early to mid-1900s — power for things such as grist and sawmills and, later, hydropower for small communities whose increasing power needs have since led them to tap into the electric grid.

A 2007 study on the growing crisis of aging dams in Michigan, prepared by Public Sector Consultants and Prein and Newhof for the Michigan Municipal League Foundation, said Michigan has nearly 120 dams in need of an estimated $50 million to address their repair or removal.

The DEQ rates the Hamilton Dam as “unsatisfactory,” state inspectors’ worst rating, a condition calling for “immediate or emergency remedial action.” That needed action hasn’t occurred for years, as the dam continues to crumble. Huge chunks of concrete are missing in portions, the inner rebar exposed. Three of six floodgates no longer work.

Nebraska Residents Continue Their Challenge of Keystone

A number of York County, Nebraska, residents continue to challenge the TransCanada pipeline route.  Keystone XL has created havoc in a national as well as a regional dispute and has raised a public outcry in support and in opposition to the pipeline.  The most recent opposition is, at least in part, premised upon the delegation of authority.  Should the most recent opposition fail, the XL pipeline will finally move forward.

York News-Times

“No one in the state of Nebraska should be threatened by a corporation, foreign or domestic,” Dunavan said. “This lawsuit will ensure that our landowner’s rights are upheld and our state constitution followed. Eminent domain must not be used for private gain.”

Assistant Attorney General Katherine Spohn, who is defending the state, filed a brief countering the plaintiffs’ stance. She said that since 1963, pipeline companies have had the ability to use eminent domain under Nebraska law and the Legislature has the authority to delegate review of certain types of pipelines to an agency other than the PSC.

Spohn also noted that before LB 1161 and the underlying law it amended, pipeline companies could build projects in Nebraska without oversight.

Presiding over Friday’s hearing was Lancaster County District Judge Stephanie Stacy, who has twice refused the state’s motions to dismiss the lawsuit. If Judge Stacy strikes down the law, the Keystone XL project may have to start over for a second time in Nebraska.

“If we are successful in our lawsuit, TransCanada will have to start the Keystone XL siting process over again through the Nebraska Public Service Commission, so it would be premature for the State Department to issue a final EIS when the route across Nebraska remains very much in question,” Thompson says. “As citizens, we are asking the State Department to respect the legal process and our state’s constitution.”

“This lawsuit has given hope to scores of landowners who have refused to negotiate easements with TransCanada,” Dunavan says.

Missoula, Montana, Goes After Water Company

Missoula, Montana, is taking on the Carlyle Company Mountain Water Company.  The City has decided it wants to buy the water supplier, probably because it thinks it can produce water at a lower price.

Ownership is a much higher expense than the community ever thought.  Going after this water company makes sense only if there is an assured and acknowledged price that is being paid, without the cost of an eminent domain proceeding and without local political hostility that usually ensues in these types of acquisitions.


The mayor announced this week he would like to begin negotiations to purchase Mountain Water from the Carlyle Group, a global asset management firm, and he’s mentioned $50 million as a rough estimate of the worth of the system.

If negotiations fail, Engen plans to begin the condemnation process and acquire the company by eminent domain, “an absolutely last resort for the mayor,” said city attorney Jim Nugent.

Nearly 30 years ago, the city’s attempt to take over Mountain Water Co. failed. Since then, eminent domain cases have become more difficult to fight, but lawyers caution that winning such cases also can mean potentially huge costs to taxpayers.

Wayne Schroeder, a Colorado lawyer with expertise in water rights and eminent domain, said the government’s power of eminent domain is hard to argue against in court. If the city moves ahead with a takeover, he said, taxpayers need to be provided a clear picture of the cost – in advance of any condemnation proceedings.

Penn DOT Takes Hard Attitude And Pays The Price

In its continuing refusal to negotiate in a reasonable fashion, Penn DOT walked into a $3,750,000 judgment for one of the 160 plus properties it is acquiring for the Route 28 reconstruction.

Sometimes, the wrong appraiser is hired and the government simply cannot get around the errors of its own way.


PennDOT offered Andrew Lang, 67, $2 million for his property that bordered Route 28. Lang thought his property was worth $12 million. He filed suit against PennDOT, and a jury issued the award on Wednesday, according to his attorney, Maurice Nernberg.

“We're satisfied with the amount, but I can't say we're ruling out an appeal,” Nernberg said. “(PennDOT) never offered him enough money. There's not a whole lot of negotiation with PennDOT.”

PennDOT spokesman Steve Chizmar declined to comment.

PennDOT took the property, located between the 31st Street and 40th Street bridges, in 2009. It later paid Lang $2 million. The ruling means the agency will owe Lang $1.75 million plus interest, Nernberg said.

Lang has owned the property since 1971 and leased space to businesses.

“He bought this property in his 20s. He built it up and got it occupied,” Nernberg said.

Lang's lawsuit was not the only litigation the Route 28 project has sparked.

Gas Storage Case Moves Forward

The EQT Corporation is finally taking advantage of its FERC approval for a certificate to operate two gas storage fields.

The question now is one of what is the value.

Gas storage offers its own very interesting and substantial issues.  


Chad Michaelson, the attorney representing Equitrans, referred questions to the company. A company spokeswoman could not be reached.

James Brink, an oil and gas attorney who is not involved in the case, said it's not unusual for a utility to use eminent domain when it can't negotiate an easement with a landowner.

“As a public utility, they have eminent domain on anything that's pertinent to their pipeline,” he said. “It's just like someone wanting to put a highway through your back-40.”

The lawsuit says the Federal Energy Regulatory Commission in 2007 gave Equitrans a certificate to operate two gas storage fields that are partly under the Loughmans' property.

Alexandria Pushes The Envelope

The City Fathers of Alexandria have spent ten years toying with the Old Dominion Boat Club.  Turning the tables on a process which the Boat Club does not want to see occur, the City claims that the Boat Club is dawdling.  The City knows what it can do; that is to simply attempt to acquire this historic site.  That would truly be a mistake.

Alexandria Times

With negotiations for a portion of the Old Dominion Boat Club’s waterfront property again bogged down, Mayor Bill Euille warned Tuesday that City Hall was prepared to seize the land if necessary.

Accusing club leadership of dragging their feet, the mayor told reporters that using eminent domain was a very real possibility. It’s time to forge ahead, Euille said during a press conference.

“After 10 years, frustration and impatience have set in,” said Euille, who previously pledged to avoid using eminent domain. “It just seems like we’re never going to get there. The time has come … to change my approach.”

The on-again, off-again talks center on the organization’s waterfront parking lot and several nearby parking spaces along The Strand. City officials want to see the lot transformed into a public plaza — making the shoreline fully accessible to the public — and other club property used for flood mitigation efforts.

Gas Storage Case Moves Forward

The EQT Corporation is finally taking advantage of its FERC approval for a certificate to operate two gas storage fields.

The question now is one of what is the value.

Gas storage offers its own very interesting and substantial issues.

Trib Live

Unable to strike a deal with a Greene County couple for an easement beneath their property, a Downtown energy company is seeking to obtain it through eminent domain.

Equitrans LP, a subsidiary of EQT Corp., filed a lawsuit in federal court on Wednesday seeking a permanent easement to store natural gas under 131 acres owned by Van and Eileen Loughman of Morris. The company says in the lawsuit that it has been unable to negotiate a contract with the couple, who own the surface and mineral rights to the property.

The Loughmans could not be reached for comment.

Chad Michaelson, the attorney representing Equitrans, referred questions to the company. A company spokeswoman could not be reached.

James Brink, an oil and gas attorney who is not involved in the case, said it's not unusual for a utility to use eminent domain when it can't negotiate an easement with a landowner.

“As a public utility, they have eminent domain on anything that's pertinent to their pipeline,” he said. “It's just like someone wanting to put a highway through your back-40.”

The lawsuit says the Federal Energy Regulatory Commission in 2007 gave Equitrans a certificate to operate two gas storage fields that are partly under the Loughmans' property.

Cleveland Opportunity Corridor Seems To Get Green Light

The Ohio Turnpike Authority Infrastructure Commission's allocation to initially fund the Opportunity Corridor provides an impetus for the project to move forward.

The opposition to this project is substantial, but the funding sources are among those which have no requirement or obligation to respond to any public outcry. In reality, the vast majority of the public may support the Opportunity Corridor in the hopes of a future prosperous development occurring.

The projects were among 10 that commission members adopted in a resolution Monday -– a total of nearly $1 billion in road work that commission members and the Ohio Department of Transportation say might have languished for years without the turnpike’s infusion of money into projects off the toll road.

Among plans the commission determined qualified for funding was an urban boulevard to connect I-490 at I-77 and East 55th St. with the intersection of East 105th St. and Chester Ave.

The commission allocated $39 million for the Opportunity Corridor’s first phase, focused on improvements to 105th St. near the University Circle area.

University Loses Expansion

The Virginia Supreme Court denied Old Dominion University the right to expand for a proposed real estate use expansion. Simply having a housing expansion may not be enough to fulfill the requirement that a taking by a university is for a true university purpose. One has to wonder whether the university properly thought this out before the acquisition was initiated.    


The housing authority has since acquired more than 160 properties in the area. Parcel by parcel, the authority turned the land over to the university’s real estate foundation, which paid the authority, compensated the property owners and allowed developers to build. The area is now home to ODU’s Ted Constant Convocation Center, a university research park, and University Village: a cluster of apartments, stores and restaurants that cater to students.

PKO and a handful of other property owners fought the process. After they lost in Circuit Court in 2011, PKO appealed the decision to the state Supreme Court, arguing in June that a 6-year-old change in state law made the move illegal.


Citizen Letter Expresses A Problem With Forced Pooling

Some may contend the opposition to forced pooling of a unitized area is premised upon the loss of private property rights.

For some it is far more. By example, how close will the well engine be to a residence? These are issues that sometimes are not appropriately dealt with by the state and local statutory framework.     

Stanford Herald

Being force-pooled through fracking will allow you to experience the incessant low grind of the drills with a 900 HP Caterpillar engine, the clanking of roughnecks beating a pipe at 2 a.m., the 24 hours a day, 7 days a week of industrial lights, the flow of tractor trailers delivering chemicals, hazardous fluids and water.

Setback for wells from homes have been approved in other states as little as 350 feet, 116 yards. How close do you want a drill to a school or a hospital — or a neighbor that includes air pollution, safety concerns and flare-ups.

How neighborly are you and the gas company going to be? The state abuse of eminent domain for industrial profit is coming to a neighborhood near you.

What happened to love thy neighbor?

Government Intervention For Perceived Public Good

It seems there is always an issue of what constitutes the “public good” and whether public good translates into Public Use.

In Palm Beach, the owners of the closed Royal Poinciana Playhouse have been in a negotiation process for likely years. The Playhouse is now closed.

There may be a problem in the Palm Beach area in that simply too many entertainment venues exist. On the other hand, the owner of the Playhouse has the opportunity to lease the property, meaning there is some demand for the use as a playhouse.

Government involvement is always a risky affair. One need wonder whether the eminent domain threat is the correct one.

Palm Beach Daily News

The newspaper asked to see email exchanges between Rosow and Sterling Palm Beach relating to negotiations for a lease agreement for the Playhouse. Rosow has said he acted as a facilitator early in the lease negotiations between Sterling, which operates the plaza under a long-term lease, and the National Arts Institute, the prospective tenant for the theater.

The lawsuit claims the correspondence is confidential because it was exchanged during a mediation process.

In addition, Rosow has told the Daily Newsnewspaper he is not required to produce the emails because they were sent from or received by his private email address.

The town is asking a judge to rule on the matter.

The newspaper’s attorney, Martin Reeder, is arguing that the emails are official town business and cannot be kept secret simply because they are labeled as “mediation.”

Sterling said in November it was negotiating with an anonymous tenant to lease the Playhouse and operate it as a theater. Sterling signed a letter of intent with NAI in March, but negotiations have since sputtered.

Pennsylvania Property Owners Learn About Easements The Hard Way

When pipelines “wear out” or simply deteriorate to the point that they must be replaced, one needs to look at the original easement to determine whether the pipeline can be replaced without any compensation. In many cases, replacement of the pipeline is fully contemplated in the original easement. Under such circumstances, the vegetation, which often may be beautiful trees, are subordinated to the pipeline replacement.   


Peoples is in the midst of replacing a bare steel pipeline, originally installed in 1952, that runs from Murrysville to Altoona. The replacement pipe will have electronic-cathode protection that helps to control corrosion, O'Donnell said.

EQT, which also has a right-of-way on Johnson's property, sent notices to property owners in the region that a contractor would use a helicopter to spray herbicide for a vegetation-management program between Aug. 1 and Oct. 15. Landowners, like Johnson did, can contact EQT to request that no spraying be done, said Linda Robertson, manager of EQT's media relations.

Dominion Transmission — a third company with a right-of-way on Johnson's property — mailed notice of its intent to conduct environmental studies and other surveys in preparation to replace sections of a pipeline in 2014.

And Sunoco Logistics, which is planning to construct a pipeline to transport ethane and propane beside a Dominion line, is acquiring rights-of-way, including one by eminent domain in Penn Township through a court order.

A Reversal Requires The Delaware DOT To Return Land And Follow A State Statutory Framework

Because the Delaware DOT did not follow the appropriate procedures in making a reasonable effort to negotiate the purchase of a piece of property, the Delaware Supreme Court ordered the property be returned to the owner. In a companion blog on the site, one will find that the federal government held that the Delaware DOT fulfilled the Uniform Relocation and Assistance Act procedure. However, State agencies must follow State statutes with more restrictive procedures than provided under the URAA process and procedures.


The state agency had wanted to use part of the ten-acre parcel to build a stormwater management pond and relocate the owner’s driveway.

After the owner did not accept DelDOT’s appraisal-backed offer, the agency filed a motion in Superior Court for condemnation.

In an email, DelDOT spokesman Geoff Sundstrom responded to the ruling, “DelDOT and its attorneys are reviewing this decision to determine its influence on the department’s appraisal of the Lawson’s property and the final acquisition price. Following this review, the agency will take whatever steps are appropriate to conclude the purchase of the Lawson property. The department and its legal counsel will also review what effect, if any, the decision may have on the department’s existing or contemplated right-of-way activities.”

Nasty Editorial About Fracking In Fayette, North Carolina

The editorial column attacks the General Assembly’s decision that it may consider requiring “compulsory pooling” in order to create fracking.

As long as the public policy of a State maintains that fracking and the income the State may derive out of the energy exploration is something good, States will continue to allow these type of compulsory pooling standards.

Nobody needs to point out the incentives to folks in Lee, Moore and Chatham counties. If the moratorium on "fracking" is lifted, wealth will rise from the ground and settle into their bank accounts. And who doesn't need money?

Yes, there's concern about polluting the water supply with the cocktail of chemicals the industry uses to release gas from underground deposits. But what are the odds? How do you trace contamination to drilling if you're forbidden, by law, to know what's in the cocktail?

Holdouts - not necessarily people who oppose gas recovery in general, but those who simply don't want their property involved in it - don't have much time or leeway. And what they need is lobbyists, not lawsuits.

The study group isn't advising the General Assembly to craft a new law. The law that allows this already exists. In fact, it's a year or two older than fracking. All the lawmakers have to do to make this happen is approve the suggested tweaks and, ignoring the current gas glut, lift the moratorium. The state, by the way, is itching to lift that moratorium.

Some critics think they see in this scheme a kinship to eminent domain, government's power to seize private property for public use, and to a 2005 Supreme Court ruling that gave "public use" an all-encompassing definition.

The Issue Of Public Service Commission Notice In New

The Krenzers object to the proposed routing of a transmission line through their property. Their complaint is premised upon the fact that there was no notice of the proposed route given to them, claiming that the route would be better suited going in a different direction.

Why utilities would proceed without providing any direct notice simply makes no sense. As a matter of public policy and Due Process, one would think that people who are losing their property rights should have some opportunity to respond to the acquiring agency’s proposals.

Members of the Krenzer family say they don’t oppose the project but say loss of 80 acres and impact on about 200 acres more would disrupt operations on their hundred-year-old farm. They said the utility didn’t fully explore alternatives. The family would be paid fair valueDescription: for the property that RG&E acquired.

The Krenzers have said RG&E’s original proposal was presented to the state Public Service Commission and approved by commissioners before the family knew about it.

Weeds Lake Project Obtains Go Ahead

The Michigan Public Service Commission has now granted the International Transmission Company subsidiary, Michigan Electric Transmission Company, the authority to construct a transmission line in Almena Township of Van Buren County and Oshtemo Township in Kalamazoo County.

The line has been aggressively fought by both the Townships and many property owners.

The intervening owners have now appealed to the Michigan Court of Appeals. Given the restrictive standards of review, one can foresee the project being taken on to completion.

The Michigan Public Service Commission (MPSC) today granted a certificate of public convenience and necessity (CPCN) requested by Michigan Electric Transmission Company (METC) for the construction of a transmission line in Almena Township in Van Buren County and Oshtemo Township in Kalamazoo County.

METC filed an application under Public Act 30 of 1995 seeking the certificate for a proposed project, known as the Weeds Lake Project, which consists of two double-circuit 138 kilovolt transmission lines, approximately seven miles long, on a 220-foot right-of-way running through Oshtemo Township and an electrical transmission substation in Almena Township.

Based on an analysis examining the costs of the Weeds Lake Project and an alternative, and the record as a whole, the Commission found that METC's proposed route was reasonable and feasible and that the CPCN for the Weeds Lake Project should be granted.

Arlington and Boat Club Lock Horns

This blog has discussed the dispute between Arlington, Virginia and the Old Dominion Boat Club. The issue of whether the Boat Club should lose its right to a parking lot is not a novel one. The damage to the Boat Club is substantial. Historical designations maintained by the Boat Club offer an interesting defense to the acquisition. Be not shocked to see Arlington succeed in its objection to an acquisition both on a historical defense basis and on a public use basis.

Alexandria Gazette Packet

City officials and elected leaders are considering using the power of eminent domain to accomplish its goals on the waterfront if members of the Old Dominion Boat Club reject their latest compromise. After eight years of negotiation and debate, Alexandria Mayor Bill Euille wrote a letter offering an ultimatum: Cut a deal of face the consequences.

"One of the considerations is potential litigation," said Deputy City Attorney Chis Spera. "Eminent domain is one of the possibilities, but ultimately that's going to be a public process. The City Council is going to have to vote on whether they want to go forward with eminent domain or anything else."
At issue is the club's parking lot at the foot of King Street, a point of disagreement between city leaders and Old Dominion members for decades. Recommendation 3.72 of the waterfront plan calls for the city to "pursue eliminating the ODBC parking lot along The Strand, preferably through negotiation with the ODBC." Since zoning for the waterfront plan was adopted earlier this year, city officials have been engaged in ongoing negotiations to make that recommendation a reality. Now those negotiations seem to be reaching an end game.

How To Destroy A Golf Course

The proposed Columbia County Airport taking truly damages a golf course.

The FAA is requiring expanded clear zones near airports purely for airport safety. Certainly the taking of the easement is a public use. However, at some point, the local community should recognize that just compensation is required!



Meanwhile, the county received a letter from the Federal Aviation Administration Airports District Office in Long Island dated Aug. 6, which stated future grant funding for the airport could be in jeopardy if the county doesn’t follow its 2003 master plan and acquire part of the neighboring golf course and remove potential obstructions to the runway area.

The master plan, developed by Syracuse-based C&S Engineers, the county’s consultant on the airport, calls for the removal of two acres of trees which are considered obstructions, and another four acres of trees in order to relocate two golf holes.

However, the owners of Meadowgreens Golf Course have so far rejected the county’s offer of $629,000 for 16 acres of land and easement rights to another 90 acres. The FAA would reimburse the county for 90 percent of the cost, with five percent reimbursed by the state, Columbia County Economic Development Commissioner Ken Flood said.



Does Eminent Domain Always Prevail Over Private Property Interest?

The City of Longmont’s attempt to acquire Dillard’s has been written about many times on this blog. Clearly, the shopping center in which Dillard’s is located needs redevelopment. On the other hand, Dillard’s is privately owned and has a right to maintain its own property so long as it is not blighting.

Colorado may allow the redevelopment so that a Merrill Lynch syndication successfully may proceed to acquire the Dillard’s property. However, private property owners should take a long and hard look at this situation before  they find the government is taking the right route to redevelopment.    


The city filed for condemnation of the Dillard's property in May, after more than a year of negotiations failed to yield an agreement. Under Colorado law, authorities can condemn property that’s in an urban renewal district and considered blighted, if the two sides can’t agree on a price.

Boulder County Business Report publisher Chris Wood says Dillard’s and the city are pretty far apart on what they think is a fair price for the 94,000 square foot property.

"The city earlier this year had offered to buy the Dillard’s property for $3.6 million dollars, while Dillard’s had requested $5 million dollars," Wood says. "An appraisal that the city conducted in November came in at $3 million."



Can A County Resolution Stop An Eminent Domain Proceeding

A number of Kentucky Counties have now passed resolutions opposing the proposed Blue Grass Pipeline.

The Koch-controlled Williams Company believes it has the power of eminent domain in Kentucky.

A statute will make the determination. In all likelihood, the State Public Service Commission has the authority to determine whether a grant of authority to acquire by eminent domain will be provided. There are certain circumstances in which the Federal Energy Regulatory Commission may be involved, but that is not the way the Blue Grass Pipeline intends to proceed.

Michigan has dealt with this issue a number of times. Effectively, local communities have lost their power of zoning regulations over State permitted utilities. Do not be surprised if the same occurs in Kentucky.


Destruction Of Farmland For Flood Plan Protection

This country is undergoing major demographic and weather changes. The two changes together are creating new flooding problems.

Eighty years ago, this country faced constant flooding problems. How many towns were destroyed by the Mississippi? Dams were built to at least dramatically lessen damage.

The Sacramento Valley is facing many of the same problems now. Weather changes have altered the water flow. Population has created additional strains on our ecosystem and soil retention.

The problem for farmers, such as the Danna Family described in the attached article, is that when they lose acres, they lose a major part and the profitable part of their business. Simply looking at their lost property as a situation in which there is a simple per-acre value does not take into consideration the affect on the overall farming operation.  


The Central Valley Flood Protection Plan, adopted last year by the Central Valley Flood Protection Board, could ultimately affect about 40,000 acres of farmland, primarily in the Sacramento Valley. The land would be used to create new "flood space," or system flow capacity, and wildlife habitat. The increased capacity would come from new setback levees and bypass expansions.

The plan calls for taking about 10,000 acres for flood space that would become permanent habitat. The remaining 30,000 acres would remain farmable, subject to flood easements and seasonal flooding, similar to farming in existing bypasses today.

The state Department of Water Resources developed the plan as required under the Central Valley Flood Protection Act of 2008, adopted in the wake of the Hurricane Katrina disaster in New Orleans.

More than 1 million Californians live and work in Central Valley floodplains, where experts say the flood risks are among the highest in the nation.

DBusiness Article on the Use of Eminent Domain of Mortgages

Below is the access for article on the subject of the Richmond, California mortgage acquisition project:

Is Pennsylvania Lawyer's Advice Correct?

A Pennsylvania lawyer told owners that they had no right to challenge an acquisition for an oil pipeline.

There are chances to challenge pipelines, and the attorney is correct that they are extremely limited.  The major issue in dealing with pipelines over the last decade is whether the pipeline has the authority to acquire for the type of mineral transport that is being sought.  In other words, there are statutes which limit transportation to petroleum only, which may not include crude oil in some jurisdictions.

Bothersome is the commentary that there will be minimal monies paid.  The Pittsburgh attorney is correct that college educations may not be paid for by the acquisition.  However, the valuation is one premised upon the diminution in the value of the property created by the pipeline.  This may be far more than a de minimis payment.       

Alvie Edwards said he might want to sell his property, which includes several lots in a housing plan that was never developed because of the construction of the original pipeline. He found that his property value may have already fallen because of the construction. It would not be possible to hide the information on the pipeline from a potential buyer because it will be listed on his property deed.

Walton told those in attendance not to expect a large sum of money for the pipeline right-of-way.

“You're not going to put your children through college,” he said, emphasizing the construction of the pipeline is not the same as having a gas well on the property. The price paid is usually a figure for the linear feet of line to be installed.

An Article Which Attacks The Chicago TIF Program

In an extremely harsh article, Mayor Rahm Emanuel is criticized for the use of TIF money to expand the convention center.

In reality, the monies come out of school funds, at least in the short term.  However, if the project is bonded and there are enough funds to pay off the bonds, the project offers an opportunity for continued development in the convention area.

Clearance for a convention center in order to keep the convention center "ahead" of its competition may offer a different basis for acquisition then "light" clearance of areas that are blighted.

The real question will be whether Chicago can pay its debts.  That is truly a big question.   

Chicago Reader

As with Michael Reese, the money used to buy the land on Cermak comes from the tax increment financing program, the slush fund mayors use to finance their wildest schemes.

More than half the tax dollars we pay into the TIF program are diverted from the Chicago Public Schools, ostensibly to help develop property in blighted areas.

Just so you know, the South Loop is most definitely not a blighted community. Dumping TIF dollars there makes about as much sense as spending them in, oh, River North-which, come to think of it, this mayor has also done.

Like I always say, give a mayor a slush fund and he loses all self-control, like Patty Duke with that hot dog.

As a result of nearly two decades of South Loop development-a good chunk of it subsidized with TIF money-nearly every lot is filled with townhomes or high-rises. And most of the remaining vacant lots have already been earmarked for future development.

Affected Kentucky Residents Object To Pipeline

As in so many other jurisdictions, residents have a difficult time accepting the notion that a pipeline will be installed on their properties.

Kentucky offers an interesting situation because the terrain is so hilly and wooded that the pipelines really make a “mark” on the terrain.         
"The only way to protect landowners before the condemnation lawsuits start is for the governor to use the special session to narrow the eminent domain statutes to make it clear that taking private lands will be prohibited for purely private projects such as this," Slutskin said.
Pendleton County landowner Stacie Meyer said most people in her community aren't even aware of the project, and although the companies have lawyers, money and lobbyists, "we've got the land, and we can tell them, `No.' "
The growing chorus of opponents includes two Roman Catholic communities, which collectively own more than 3,000 acres in Central Kentucky. The Sisters of Loretto in Marion County and the Abbey of Gethsemani in Nelson County have denied representatives of the pipeline developers permission to survey their property and said they won't participate in the project.

An Interesting Editorial in the Nashua Telegraph

The Nashua Telegraph has a balanced article about concerns over eminent domain, the issues of just compensation.  This short Nashua Telegraph article has hit a bulls eye.

As much as we dislike the idea of eminent domain, this does not strike us as a case of big government pushing its weight around. The law spells out a process and the state and city appear to have complied with it. The Parslows have known - at least for months if not years - that the day would come when they'd have to move.
At the same time, the low-ball charge is not unusual in eminent domain proceedings, and it points up a flaw in the process: Once an appraisal comes in, all the leverage in the transaction shifts to the government, which in a position to issue a "take it or take it" ultimatum based on a dollar figure that is, by definition, subjective.
Perhaps there are still a few options available to resolve the matter to everybody's satisfaction. We note, for instance, that some properties in the Broad Street corridor that were taken for the project are no longer needed and will be put up for sale. It sure would be handy if one of those parcels proved to be a perfect fit for Gate City Tire.
But whatever is going to happen needs to happen fast, and the Parslows probably need to start packing if they haven't already. Because the rubber seems about to hit the road.

A Problem For Government - They Have To Pay Just Compensation

Lee County, Florida, has been on a buying binge for years.  It has also been on a restricted zoning binge at the same time.
The policies have now come home to roost. The County will have to ascertain a way to pay for all of this aggressive behavior. This is certainly not wonderful to see.
Earlier, a New York Times Op-Ed attacking the owner’s position in the Koontz Supreme Court appeal was provided in this blog.
Paul J. Beard, II offers a well-reasoned and thoughtful response.
Each is worth reading.        
Of $134 million in estimated liabilities, 97 percent, or $130.3 million, stems from land cases: mostly efforts to acquire land for public projects or zoning decisions.
Underlying Lee's largest legal liability at $61 million is the commission's decision to cut development rights on Pine Island. Pending lawsuits make up about $20 million of that figure, while the county attorney's office estimates another $41 million could be claimed by impacted property owners.


Murfreesboro Attempts Openness

Murfreesboro, Tennessee, has figured it out. People feel like a fight with the government is a losing David and victorious Goliath affair. Owners frequently feel cheated because they do not understand the process.
Murfreesboro is determined to have information about owner rights when it discusses the eminent domain process with owners.
The eminent domain process is a harsh remedy, and rational acquisition agency efforts can at least mollify the turbulent waters to a degree.        
Murfreesboro has drafted a "landowner rights" notice in response that it hopes to begin sending out to property owners in advance of eminent domain proceedings. It spells out, point by point, what landowners can do if a local government wants to take their property for a public use.
"Our hope is that having more information about their options will be helpful to them and help them choose their next path," Murfreesboro City Attorney Susan McGannon said.


The Third-Party Beneficiary In Eminent Domain

People should look closely at their rights under the contract between an eminent domain acquiring agency and the contractors performing the work.  Sometimes, maybe rarely, there is an understanding in writing that there is a protection for the public in general in the agreement between the community and the private contractor.  Such was the case in Pennsylvania when a Pennsylvania Commonwealth Court majority determined that the owner would have been acquired through an eminent domain process ongoing since the 1970's had a right to seek relief from the contractor.   

In a split decision, a seven-judge en banc panel of the Pennsylvania Commonwealth Court reversed a trial court's 2011 ruling that the building's owners did not have third-party standing to launch suit to enforce a 1977 contract between the City of New Castle and its redevelopment authority in their bid to hold the city financially responsible for a $2 million de facto condemnation judgment.
The Centennial Building was a commercial property that was scheduled to be acquired and demolished in 1970 by the Redevelopment Authority of New Castle as part of a redevelopment plan for downtown New Castle. After the building's tenants moved out ahead of the planned demolition - leaving the building useless with no income stream - the authority changed its mind in 1978 about including it in its redevelopment plan and opted not to acquire it, according to the opinion.
The Commonwealth Court said it has already been determined that the Redevelopment Authority, which had essentially condemned the building, was ultimately responsible for the condemnation judgment but could not pay the owners because it had insufficient funds, according to the opinion.

A Landowner Fracking Case Is Filed In New York

The first of the fracking cases is about to be filed in New York.  A law firm will represent the fracking companies desiring to end the limitations they believe were improperly placed upon them by State regulatory procedures.    

"The initial draft of the complaint has been prepared by our attorneys and will soon be reviewed by our full legal team," JLCNY President Dan Fitzsimmons wrote in a newsletter late last month. "We have several plaintiff candidates who would be appropriate for the action. We will begin contacting plaintiff candidates when we get closer to our funding goals."

When A Gas Station Partial Taking Is A Total Taking

The Waunakee taking of gas station pumps and the convenience store bodes poorly for the station.  Realistically, when those “partial takings” occur, the value of the entity is so diminished that only a total taking should be deemed appropriate.    

To them, the 32-year-old enterprise they've nurtured for much of their adult lives is more than just bricks and mortar - it's like a child, Treinen said.
Now the road project will close parts of the business. Along with the pumps, the convenience store and Milio's sandwich shop will also cease to operate at the location. On Monday, Waunakee's Plan Commission considered plans to relocate the Milio's sandwich shop to N. Century Avenue.
"It so dramatically changes your business model," Miller said. "The whole flow has got to be adjusted."
Treinen and Miller have filed an appeal of the eminent domain proceeding, challenging the amount of compensation from the DOT. They and their attorney say it is too little to cover relocation costs.

Bloomberg Calls For Four Cylinders In Detroit

The notion of downsizing as expressed in the Bloomberg news article accurately reflects an undertone of those who want to see Detroit survive in the future. The community does not have the population base and cannot afford the infrastructure without a population base. Population is not about to arrive in the community while the per-capita expenditure for infrastructure is so great. “Eminent domain”, those dirty words, probably will be required in order to downsize the City. This is a long way from the notion that eminent domain will be used for economic development!    

A few cities such as New York and Washington have reversed their earlier population losses. Others, such as Boston, are smaller than they used to be but have developed a solid economic base. Cities that are unlikely to get bigger or richer have two options. The first is consolidation. Residents of underpopulated areas are encouraged to relocate to other parts of the city, these neighborhoods are reinforced, and the abandoned areas are essentially mothballed, with all municipal services cut off.
The second option, even more drastic, is divestiture. Historically, cities have grown by annexing neighboring communities. They could shrink by doing the opposite: selling off land in large tracts to private developers who would be responsible for providing their own municipal services (as they do in the suburbs) without the burden of city taxes and bureaucracy. Cities wouldn't gain taxpayers, but they would divest themselves of unproductive land, and at the same time, people and economic activities would be attracted back into the urban vicinity.
Consolidation is not a smooth process. It attracts many opponents, not only the residents affected but also historic preservationists, local politicians and minority spokesmen. In Youngstown, as the New York Times reported, a program to demolish vacant houses foundered. "Ordinances were passed, but they fell victim to political infighting and legal action. Code enforcement was difficult because the city's planning department, which employed 28 people in the 1970s, had dwindled to 3, including the secretary." In Detroit, popular resistance to the consolidation plan didn't take long to materialize. Because depopulated neighborhoods tend to be in low-income areas, the stage is set for a David and Goliath confrontation, often fueled by bathetic stories in the news media.

Golf Course Acquisitions Are Complicated

An eminent domain proceeding involving a golf course is always a complicated process.  A golf course is expected to have nine or 18 holes.  Further, golf courses which have putting greens and driving ranges are far, far more valuable than courses without in most circumstances.  To take holes or amenities is to really tear a golf course apart.

Columbia County, New York, will be slow to learn but this a truly a serious issue for the Meadowlands Golf Course.    

Columbia-Greene Media

"The amount they are paying me is ridiculous," he said.

Nero and an investment group purchased the golf course in 2006. The current ownership group includes Supervisor Matt Murell, R-Stockport, who has recused himself from all public discussions and votes involving the matter.
Nero said the encroachment by the county onto his land will require him to relocate two golf holes, plus a putting green and a chipping green. The offer does not reimburse him for the chipping green and putting green, he said.

Boulder Moves Forward

Without question, Boulder is going to move forward to acquire the Xcel distribution system in the City.  Common sense says this is wrong.  Concern about the increasing costs of utilities simply is not enough of a reason, but in many jurisdictions that seems to be the proposed solution.

Three years ago, Boulder started exploring the creation of a municipal electric utility to replace Xcel, Colorado's largest electricity generator. The move is being driven by an analysis that the city cannot meet its climate action plan's emission cuts if it uses Xcel electricity, which relies heavily on coal.
Under the low-cost municipal-utility scenario, by 2037 Boulder would get about 48 percent of its electricity from natural gas, 3 percent from solar, 46 percent from wind power and 2 percent from hydropower.
In 2037, Xcel would still be getting 20 percent of its power from burning coal and another 52 percent from natural gas, according to the Boulder analysis.
The biggest dispute has been over the cost of creating a municipal utility, with estimates ranging from $150 million to $405 million.

Why Owners Complain Of Rails To Trails

When one reads the article below, the reader will find an owner who bought a piece of property in a quiet area contemplating just that; quiet.  Instead, the owner now has a trail encroaching upon his residence.
This puts one in mind of wondering how those who purchase near former railroad sites must feel when the railroads are turned into public trails.
But he fears that serene setting might change as city officials want to carve out part of Gitman's yard using eminent domain, a legal process that allows the government to seize private property for public use. Property owners are compensated.
Nearly 3,500 square feet of Gitman's backyard is in the way of the Southwest Beltline Connector Trail, a multi-use path that would connect parks located along the Atlanta Beltline.
The proposal, which is currently in front of the Atlanta City Council, would also allow the city to take slivers of property from four of Gitman's neighbors. In addition, the city is considering using eminent domain to acquire seven entire parcels located nearly two miles away that would be used to enlarge a separate Beltline park.

An Article Which Covers The Proposed Bluegrass Pipeline In Kentucky

The Bluegrass Pipeline is part of an 1,100 mile pipeline taking natural gas from Pennsylvania to Louisiana.  The article below speaks of the economic benefits and the environmental risks, especially given the Kentucky geological landscape.  It is well worth reading.      

In Kentucky, Williams will have to get permits to cross streams, or withdraw large amounts of water. They'll have to follow applicable rules for fugitive emissions, and will have to dispose of waste at a permitted facility. The company will need a 404 permit (commonly used for valley fills in surface coal mine operations) from the U.S. Army Corps of Engineers to cross wetlands or any navigable stream. But FitzGerald is also calling for the Army Corps to complete a full-scale environmental impact study on the project; an Army Corps spokeswoman says it's too early in the project to discuss that option.
Land agents haven't made any offers to landowners yet. Eminent domain isn't out of the question, but it's way too early to talk about it now. And regardless of whether an individual homeowner agrees to the pipeline, opponents argue that allowing the project anywhere in the area could be devastating for the community as a whole.
But could a leak happen in Kentucky, and what effect would it have? Residents are concerned about their groundwater, which supplies several public water systems and is a key ingredient in the region's famous bourbon.
David Harris is a geologist with the Kentucky Geological Survey. He says the nature of NGLs would mean that most of them would turn into gas if there was a leak and they were depressurized.

City of Fort Wayne and Aqua Arrive At A Resolution

Aqua and Fort Wayne have been in litigation for six years, fighting over the acquisition of Aqua’s southwest Fort Wayne utility.  Finally, a resolution has been reached.

The Indiana Supreme Court clarified the right of a utility to obtain a full and fair hearing available to other property owners in the State of Indiana.  The precedent will serve as a protection to utilities in Indiana, and prospectively, other jurisdictions.  
The city will pay Aqua $50.1 million in addition to the $16.9 million the city paid Aqua for the north system. The $67 million will cover the cost of all of Aqua's drinking water facilities in and near Allen County.
In December 2007, the city paid nearly $17 million to buy Aqua's north system. Aqua officials have said their north system was worth about $40 million.
In 2007, the Indiana Supreme Court upheld the city's takeover of Aqua Indiana north plant.
While that settled the legal dispute over the city's authority to declare eminent domain and take over the utility, the price the city must pay remained in dispute.
The Supreme Court ruled in April that the utility is entitled to a full rehearing of the matter, and that includes a request to a trial by jury.
It wasn't until last summer when a drought forced Aqua Indiana to connect to the city's water supply that the company and the city realized it was time to sit down and come up with a long-term plan for providing for its customers in the city's southwest neighborhoods, Henry said.

Can a Cemetery Association Acquire?

At a seminar in Cleveland eight years ago, a participant questioned whether an acquisition could be made for a cemetery association.

The historical basis of cemeteries is that they are public groups of citizens aggregating their interest in order to buy a common burial plot. As long as the legislature or the common law prior to the initiation of a constitution allows the acquisition by eminent domain for cemetery assemblage, an eminent domain proceed shall be successful. In Wallingford, Connecticut, there is a little more to the situation. Here, members of the Community Council allegedly had a conflict. The article softens how nasty the meeting must have been.           
The council voted Tuesday night to purchase 58 Prince Street for $148,000 and also approved a plan to acquire 60 Prince Street through eminent domain. Both properties sit outside the southeast corner wall of the nearly 350-year-old cemetery, near the intersection of Prince and South Orchard Streets.
The Center Street Cemetery Association is looking to acquire the two properties in order to create a new storage shed to store equipment for Robert Devaney, the superintendent of the graveyard, as well as to create a meeting place and resource center where he could meet with families and historians seeking to access the cemetery's records.
Tuesday's votes also included approval of spending $120,000 to acquire 60 Prince Street, demolish it and create and another entrance to the cemetery. A July 16th public hearing has been set to discuss the town issuing bonds to pay for 58 Prince Street.

Preston Judge Follows Statutory Delegation

Finding, at best, an implication that a project was a “public use” under the statutory framework, a Minnesota Judge concluded the Minnesota Outdoor Recreation Act did not allow for eminent domain acquisitions in order to create a recreational trail.  An implication that a statute is intended to include a type of acquisition will not be considered enough to show a direct delegation allowing the eminent domain procedure to be utilized.  A direct delegation of the power of eminent domain is required.   

The appellants appealed the remand by petitioning the Minnesota Supreme Court. The Supreme Court rejected their petition on April 16 and sent the case back to Thompson. In his review, Thompson presented 25 findings of facts followed by a conclusion, which stated the city of Preston is "not presently authorized by Minnesota Statute to take the landowners' real property for the proposed Preston to Forestville State Trail." 
The statutes in question were Minnesota Statute 85.015, subd. 7(b) and Minnesota Statute 86A.05, subd. 4. The latter statute is part of the Minnesota Outdoor Recreation Act (ORA) of 1975, which Thompson stated did not independently authorize the trail segment. That statute is cited within Stat. 85.015 subd. 7(b), which states where trails may extend within the Blufflands Trail system. The statute does not contain Forestville. 
The city of Preston argued the Preston to Forestville segment would be part of a trail to Ostrander, which would be authorized under statute. The appeals court noted in its opinion paper that they felt the proposed trail segment was not authorized. 
In Thompson's memorandum of law, he stated, "Nowhere in these two statutes is there anything specifically authorizing the development of the Preston to Forestville State Trail," effectively reversing his previous ruling. 
He further explained, "The apparent direct connection between Preston and Ostrander seems implied, but is not clearly stated." 
He cited Findings of Fact No. 25, which explained there were abandoned railroad rights of way that connect the list of statutorily accepted cities, but bypass Forestville. 
In concluding, Thompson said the recreational trail wasn't approved by the Legislature. He also dismissed the action of eminent domain. 
The appellants' lawyer Larry J. Peterson of Peterson, Logren & Kilbury of St. Paul attorney firm agreed with the judge's decision and said his clients were ecstatic at the decision. 


The Conflict Between National Self Protection And Public Use

Maine residents, facing a proposed highway through its underdeveloped underbelly, gripe a little bit.  Residents in the area seem to be concerned that the new road will simply link two separate parts of Canada.  

This may be true.  However, the road will also dramatically change economic development in the State.  One should carefully review the situation before finding antipathy towards a project.  
One of the top supporters of a proposed east-west highway that would connect two Canadian provinces through Maine told a skeptical crowd the project would provide an economic boost for communities along its route and no land would be taken by eminent domain.
Peter Vigue, chairman and CEO of construction company Cianbro Corp., told about 700 people at a public meeting May 31 at Foxcroft Academy that the 220-mi. (354 km) toll road would revive struggling communities in rural Maine. Another 150 people opposed to the project demonstrated outside.

Toledo's Cowan Park Homeowners Fight Back

When owners face acquisition of their properties for a government expansion, those losing their properties often stand their ground and fight back.  Such is the circumstance in the Water Plant expansion project, which contemplates the acquisition of almost 30 residential properties.    

"Beverly Hills of Birmingham"
Although one resident said he was willing to sell, six residents spoke against the taking of homes in one of East Toledo's more affluent neighborhoods.
"Overall, there is a concern that this is one of the nicest parts of the neighborhood - the people there don't want to move if they don't have to. This, I think, is a truly strong neighborhood" said Father Frank Eckart of the Birmingham Development Corporation.
The homes are next to Collins Park Golf Course and one homeowner originally paid $105,500 for his property, although appraised values have dropped because of a decline in the real estate market. Miller said the city will pay closing and relocation costs, so there should be no out of pocket expenses for anyone willing to sell unless they purchase a more expensive home.
Some that were thinking about selling said they were looking at homes in places like Oregon and Findlay. One speaker said he was willing to sell and was already working with Miller to reach an agreement, but most wanted to stay.
Steve Nemecek, 724 Collins Park Avenue, said his family has lived at Collins Park since 1922. He called the neighborhood the "Beverly Hills of Birmingham."
"Before the golf course and before the water works, we were there," Nemecek said. "This street is a vital part of the neighborhood for people to walk. You take all the homes and you destroy this street and you are slowly going to take apart the neighborhood.
"All we want to know is, tell us, and let us become involved in this process and not be in the background. If we're involved in the process, I think you can save the street. This street is vital to the neighborhood."

New Jersey Town Gets Aggressive

The Montclair Planning Board has effectively authorized the future condemnation for “redevelopment” of a number of properties in its downtown area.

One only needs to note the responses of some of the owners to understand that, far from blighted, people have plans and are intending to appropriately develop the property on their own in conformity with the existing Zoning Ordinance.

Montclair should reconsider its plans.     
The Montclair Planning board last night voted to support a plan to designate a dozen properties in the central business district "an area in need of redevelopment," which, among other things, gives local leaders the ability to override existing zoning rules in order to make it easier to carry out a particular development project.
Properties in the classification include the Delta gas station at the northwest corner of Bloomfield Avenue and Valley Road, the parking lot at the southeast corner of Valley Road and Bloomfield Avenue, the DeCozen car dealership parking lot on Valley Road behind the police station, the building next to the police station that was home to the now-shuttered Quiznos and Nouveau Sushi, and the Leach storage building.

Maryland Local Paper Cites Opposition To Purple Line

 A local community paper has noted how individuals feel harmed by the proposed Purple Line.

The Purple Line probably is a fait accompli.  Funding may be lacking now, but people contemplated development and location of their businesses and homes in light of where the Line will be located.  The transportation needs in the Washington area are overwhelming.  One only need drive through Washington to realize how difficult automobile travel is in this town.    
"They are going to take our last grassy strip and turn it into asphalt," Gamerman said, who added that he is worried about the noise and the vibrations that are sure to come with a train zooming by his building several times a day. Of the Purple Line, he said, "We hate it. It should go up Jones Bridge Road. But we don't have any political clout."
Newly-elected Town of Chevy Chase Councilman John Bickerman called the proposed Purple Line "misguided and not thought through," and questioned whether it was really more cost-effective than creating dedicated Bus Rapid Transit lanes between Silver Spring and Bethesda, the leg of the line that is expected to get the heaviest use.

Idaho Farm Bureau President Raises Opposition To A Power Line

In a passionate letter, the Idaho Farm Bureau President Frank Priestley describes how Idaho has already lost farmland, the reason being that the new transmission line moves away from the open farmlands, seeking to find a better route than open areas for the placement of the transmission line. This may be an uphill battle, but it has a huge negative effect on farmers.

Underlying the article, one senses that the “secret” negotiations make it very difficult for those not yet part of the negotiations to feel that they could ever be treated fairly. The concern is probably accurate.        
The process of negotiating the purchase of a right-of-way across 700 miles of private land with possibly hundreds of different landowners is a daunting task. There are dozens of things to consider and each property will be different. Things such as how much crop land will be disturbed and for how long, values of various crops, yield loss, irrigation refits, cost of access for future maintenance of the power line and many more. From the power companies' perspective, it will be much easier if the landowners up and down the line can't share information. Landowners in the path of this project have a lot at stake and should be compensated fairly.
We can anticipate the power companies' response to moving their lines away from private land will be that power rates will increase. We also know that with or without this project, power rates are going to increase anyway. A lot remains unknown about this project and the future, but one thing we are certain of is that the power companies are going to continue to be profitable. If rates increase the cost of food production follows and those costs will be passed along to consumers.
We urge all Idaho farmers, ranchers and landowners to rally toward this cause. If this project is allowed to move forward as planned it will set a dangerous precedent for private landowners all across our state.

Did Hurricane Sandy Affect The New Jersey Supreme Court?

The courts have consistently determined that the beach replenishment is an effective taking of the property for which some compensation is required.  The New Jersey Supreme Court recently overturned a large jury verdict because the jurors were not allowed to consider a dune’s benefit in calculating the affect of property value.

Without question, Hurricane Sandy has had its affects!

However, the total exclusion of benefits to the parcel acquired mandated reversal.      
The New Jersey Supreme Court on Monday overturned a $375,000 jury award given to a couple who complained that a protective sand dune behind their house obstructed their ocean view.
The ruling is being seen as a victory for towns that want to build, in the aftermath of Superstorm Sandy, barriers to protect themselves from catastrophic storms but feared expensive litigation.
The state Supreme Court faulted a lower court for not allowing jurors to consider the dune's benefits in calculating its effect on property value. The high court ruled that those protective benefits should have been considered along with the loss of ocean views.
The sand dune in question saved the elderly couple's home from destruction in Superstorm Sandy in October.
The 5-year-old case was being closely watched at the Jersey Shore, which was battered by Sandy. Officials want to build protective dune systems along the state's entire 127-mile coastline, but towns fear they won't be able to if many homeowners hold out for large payouts as compensation for lost views.

Galion Takes A Serious Look At Eminent Domain

A newly elected City Council recognizes that substantial funds have already been expended for engineering, planning and purchases.  Yet, the Council realizes the large risk of moving forward with an appropriation of 13 parcels of property on the Portland Way North widening project. It is rare to see City Council’s acting skeptical on takings once advised by their respective administrations to move forward with an eminent domain proceeding.  The new City Council in Galion apparently understands that it has a responsibility to make the determination as elected officials.  
After Council's long Executive Session, it reconvened and considered a resolution to authorize the appropriation of 13 parcels for the Portland Way North widening project where property owners had not agreed to the acquisition or to a value of the impacted property, and where eminent domain was therefore available. The authorization was required by the Ohio Department of Transportation for the project to proceed.
After a motion to suspend rules and proceed on an Emergency basis passed unanimously, Councilman Dr. Thomas Fellner turned to the relatively few citizens who had stayed through the Executive Session, and asked for input on whether or not Galionites wanted the project to proceed. "The question is do you want the 598 project to go forward," he said, "we all have feelings on it, but we're torn between taking this to the next step of eminent domain and kind of forcing the issue. The question is whether the City is going to be well served by this project."

Much of the discussion which ensued touched on the issue of the use of eminent domain contrasted with the costs to the City by not moving forward after many years of planning and the expenditure of hundreds of thousands of dollars for engineering fees. Mayor O'Leary shared the observation that for most of these property owners, this will be a once-in-a-lifetime occurrence of having property so appropriated, but that he understood well that taking property, even with payment, is a difficult issue. 

Virginia Lawsuit "Damages" Town

Iron Gate, Virginia, bit off more than it could chew.  Completely misunderstanding both the law and the valuation system requiring that fair-market value be paid to an owner who loses his property, the City of Iron Gate acquired property without understanding the owner also has rights.

The Mayor notes that the City Fathers have lost a lot of sleep with the project.  However, had they recognized at the beginning that fair-market value would have to be paid, perhaps this would not have happened.    
To secure the loan, the town had to mortgage its town hall. Iron Gate increased its cigarette tax and laid off part-time workers to raise revenue to pay off the loan, Mayor Alan Williams told the Roanoke Times ( ).
"There's been some sleepless nights over this thing," Williams said.
Martin sued the town in 20102 over its seizure of nearly an acre of his land for a new water tower in 2010. He alleged that the town effectively took more of his property because the construction of the water tower went outside the land that had been taken.
Martin said he would have taken the case to trial if he only wanted money.
"The taxpayers took a beating because of the stupidity of the mayor and the Town Council," he said.

Arkansas Fish and Game Creates Removal in Michigan

 Claiming that a temporary flooding was arguably a federal cause of action, the defendants who opened up the damn have removed their case to the Federal Court for the Western District of Michigan.

Without regard to the merits of the claim, one can only suspect that this week’s Florida decision and the Arkansas Fish and Game case have opened up the federal jurisdiction.     

Under federal law, a case is immediately transferred if a defendant files for a notice of removal. Houle called it a stalling tactic and "a meritless notice of removal."
"They read too much into it," said Houle, who is filing to have the case remanded back to Grand Traverse County this week.
A message left with Phinney was not immediately returned Tuesday afternoon. Defending attorneys have asked to have the case dismissed.
The case is currently before U.S. District Judge Gordon Quist.
Houle is also representing property owners Ronald and Landa Alpers, who are suing Grand Traverse County in a similar but separate case related to the Boardman River dam removal.

Iowa Article Discusses How To Build An Airport

The Des Moines Register article describing the conundrum in the Pella, Iowa proposal to build a new airport because the plan should be premised upon local demographics and regional politics. In all likelihood, the reasonable Airport Authority, not responsive to any individual elected official, will make the final decision on if and when an airport will be created. Clearly, the FAA may yet involve itself. However this certainly has not occurred yet.

Des Moines Register

They say signs opposing the airport are all over town. A petition is circulating. Websites like have been created. Intensifying the backlash is the fact that eminent domain could be used to take farmers' land to build the airport at one of three sites between Pella and Oskaloosa. They believe there is enough division in town that the matter should go to a vote. Their question to the Des Moines Register Reader's Watchdog: Why can't there be one? For one thing, Iowa law allows local governments to create independent entities that aren't directly accountable to taxpayers. The South Central Regional Airport Agency was formed under a frequently used legal contract between jurisdictions -- it's called a 28E agreement. The agency has been charged to usher the evaluation, construction and operations of a regional airport. Pella city administrator Mike Nardini downplayed how far along the planning was and said the agency is still researching options and alternatives.

New Jersey Eminent Domain Bill Goes To The Governor

The New Jersey State Senate has now approved a bill similar to one previously passed in the State House. The reforms are relatively minor. After reading this, it will be understood that this is not a victory over the Kelo decision.

Significantly, the bill also provides local governments with an option to undertake redevelopment with, or without, the power of eminent domain. The Assembly passed a companion bill, A-3615, without opposition last month. It now goes to Governor Chris Christie for consideration.

Can Syracuse Redevelop Its Long-Lost Hotel?

Large hotels near local convention center are a necessity. Syracuse, New York, has for its largest hotel the 510 room Hotel Syracuse. The hotel has empty for over five years. The taxes on the building have now been paid, but that does not mean that the building is a viable part of the community. The problem with an eminent domain proceeding is that it is very likely one will find that the vandalized hotel has a substantial value as either a historical site or an urban redevelopment type. Yet, the property remains unutilized.

After being held off again, city officials said they would consider using the city development agency's eminent domain power to take control of the property. State law allows industrial development agencies to take property by eminent domain to facilitate economic development. The city agency would have to pay market value -- as determined by a court -- if it acquired the hotel by eminent domain. City and county officials say a renovated and reopened Hotel Syracuse would draw more conventions and other events to the convention center and speed up the revival of South Warren Street. Once the city's financial district, South Warren Street has experienced large office vacancy rates in the past 10 to 20 years. The recent redevelopment of the former Merchants Bank and HSBC Tower buildings have started a resurgence for the street, however.

North Las Vegas Agrees To Purchase Underwater Mortgages

North Las Vegas has placed itself in the peculiar position of knowingly taking the unconstitutional action in abridging contractual rights between parties after the fact. We all know that there are tons of underwater mortgages in this country. But to tell the lenders that "now" is the time in which they lose their investment was not contemplated by the mortgage agreement and of the taking of the mortgage rights.. Do not be shocked if the mortgage lenders end up obtaining the deficiencies not collected from those individuals who borrowed money and signed mortgages, but rather from the governmental authorities who created the unconstitutional taking of their right to contract.

Las Vegas Review-Journal

Once in place, the plan allows city officials to seize a bad home loan in much the same way it condemns a blighted property. The program will see city officials use eminent domain to pay mortgage investors less than face value for a troubled home loan while representatives from MRP restructure the homeowner's debts in a new mortgage backed by the Federal Housing Administration. The company will charge the city a per loan advisory fee, and both parties will take a cut on the difference between the original bad mortgage and a new, FHA-backed loan resold to third-party mortgage investors. An estimated 75 percent of North Las Vegas home­owners are still at risk of losing their home. MRP officials suggested that could cost the recession-ravaged city, which teetered on the brink of bankruptcy this time last year, some $50 million in lost property tax revenues. About 15 percent of the city's 30,000 underwater borrowers qualify for the revised plan, which applies only to private label securities -- bundled mortgages not held by Fannie Mae and Freddie Mac, which have been left largely untouched by federal housing refinance efforts.

Ball State University/Hiatt Printing Offers A Kicker On Kelo

In reading the Muncie Star Press article on Bowling Green State University’s withdrawal of a proposed eminent domain proceeding involving the taking of a local printing company, one can only conclude that the activity approached the "economic development" process which many consider so vile and has created such havoc after the Kelo decision.

Clearly, eminent domain is part of the overall planning process. Educational institutions clearly are public uses. Yet, one has to wonder when the "public" ends and the "private" begins.

Star Press

Score a win for the little guy, if that’s how you view the recently concluded legal dust-up between Ball State University and Hiatt Printing. Or, score a setback for the university and community development, if that’s the side you’re on.

Either way, we’re glad the dispute appears to be over.

Just more than a week ago, university officials abruptly announced they were ending efforts to develop McKinley Commons, a $25 million proposed hotel, student housing and retail complex that included land now home to Hiatt Printing at 506 N. McKinley Ave. The project might move forward, but in a reconstituted guise.

Ball State filed an eminent domain lawsuit last September against Hiatt Printing, after an offer to buy the site for $400,000 was rejected. The two sides were never close to settling on a price.

The project would have been good for Ball State and Muncie. Last year, we expressed disappointment the university did not locate the project in the downtown, but acknowledged the Village area was a logical choice because it was close to campus, and was in an area that has seen redevelopment.


Northern Will County Water Fight Continues

While the Mayor took great pleasure in talking about his golf score, water rates went up drastically in the communities involved in the American Lake Water condemnation. The problem may end up being that a fifty percent increase in water rates in Northern Will County is dwarfed by the water increases in so many other communities throughout the country. To simply assume that an increase in the water rates gives rise to a need to acquire the property makes no sense. Better the Mayor talk about his golf score.

Chicago Tribune

Bolingbrook Mayor Roger Claar said during Monday's meeting that his water bill is about $100 a month, and that other residents he hears from say they are tired of the high water costs as well.

"Some, every time they get the bill, they complain," he said.

Monday's meeting lasted only about 10 minutes, with the mayors spending nearly as much time after the meeting making small talk about golf scores and other non-water topics.

The agency offered to purchase the water line from American Lake Water last year for $37.6 million, an offer the company rejected, according to lawsuit documents.

The five towns are trying to buy the line due to "unprecedented" hikes in water rates, more than 50 percent from 2003 to 2012, according to the lawsuit.



Energy Corridor Becomes Front and Center

When it comes to easements and rights of way, not every company is a good neighbor. And not every landowner is willing to sign off on allowing a company to use his property. There can be legitimate issues separating the two.

The idea of energy corridors is reminiscent of the unified development (unitization) of the oil field in and around Little Missouri State Park. It was supposed to minimize the footprints of the oil pads, roads and pipelines, giving companies an opportunity to better plan the necessary infrastructure. It didn’t quite work out that way, and the surface owners were the ones who lost out.

For landowners with no mineral rights, payments for easements and rights of way may be their only opportunity to benefit from energy development.

As the interim committee probes the possibilities of energy corridors, members need to make sure they protect the rights of landowners in the path of these energy easements and rights of way. Convenience ought not trump property rights.


Bismarck Tribune

The Bismarck Tribune recognizes the importance of the energy corridor as part of overall development in North Dakota. The destruction of a property by any utility is tantamount to confiscation in the minds of most property owners. Yet, some balance is needed in order to produce a viable system of energy transportation. The process is always difficult to manage. The corridor will have substantial effects on individual owners. Yet, the corridor may make more sense in some specific situations.

NiSource Moves Forward With Chester County Pipeline


NiSource, the parent of Columbia Gas, is seeking easements and FERC approval of a pipeline construction and operation.

Columbia is seeking to obtain voluntary grants of easements. While the agreements may work out, owners should always be careful with what they sign. The help of a lawyer is mandatory. There are plenty of good land-use and title attorneys in Pennsylvania, and if an owner is satisfied that the right amount is to be paid, and the owner accepts that his property is to be taken, litigation is not always the correct route.  Yet, sometimes owners have no choice in fighting back.

The beginning of the assessment also marks the start of the “scoping” process, during which the commission will gather feedback about the project from the public and any interested agencies. The scoping process will end July 8.


During this time, Columbia, owned by NiSource, might contact landowners to discuss whether they can secure easements on land in the project’s path. Easements would allow the company to construct, operate and maintain pipeline facilities.


According to the commission, if the project is approved, it is also given the power of eminent domain, allowing Columbia to condemn properties where they could not reach an agreement about compensation for the owners.

Potential for Re-Zoning in Eminent Domain Valuation


In one of those cases in which a community does not understand, the government had to pay fair-market value for a property.

Some view the consideration that a property acquired may be re-zoned as "possible" or "probable" or just one in which the potential is considered by the buyers and sellers in the marketplace. Clearly, the Eagleville Tennessee High School expert missed the real affect of an acquisition in simply determining the present use was the highest and best use of a property, totally disregarding the potential for a changed use under the existing planning.

The trial was delayed for years by a number of factors, including scheduling, health of witnesses and new evidence, according to Thomas, who took the case in 2005.

Jackson real estate appraiser James Murdaugh, considered an expert witness, testified that the property should be worth $15,000 per acre because it was on high ground and was the most valuable part of Huebner’s tract.

Murfreesboro appraiser Johnny Sullivan, hired by the county, valued the land at $6,000 per acre, based on the poor quality of its soil for septic tank use and comparable Eagleville area land sales in the $6,000 range.

Sullivan testified that the property should be valued based on its residential zoning, not the possibility that it could be rezoned for commercial, industrial or public school use.

County Attorney Jim Cope also argued that for 25 years Huebner never sought a rezoning and that he simply made a poor investment in an area that saw no growth. In fact, Eagleville’s population shrank in the 1990s, he said.

(Page 2 of 2)

In questioning by Cope, Huebner testified he thought the property today would be worth $1 million. When Cope told him that would equate to $6,000 per acre, Huebner said it would be worth $1.5 million.

“This property was used as a sod farm,” Cope said during closing arguments, noting the county school system had to put in 3 to 6 feet of fill material to build the stadium, which opened in 2003.

However, Huebner previously sold two 2-acre tracts zoned commercial/industrial, including one to the county for $17,500 per acre within a year of the county’s condemnation.

Thomas contended that state law says all potential best uses of the property have to be considered when it’s taken by eminent domain, including commercial and industrial, as well as public school projects.

Property for Rock Springs and Barfield schools sold for $12,320 and $19,000 per acre at that time, Thomas noted.

Pieces of property on Huebner’s tract also were condemned by the Tennessee Department of Transportation and for utilities since he purchased it, showing that it was in a development area, Thomas said.

Juries typically favor property owners in condemnation cases because they don’t like the idea of the government taking property the person isn’t trying to sell.

In this case, Cope said he was pleased with the outcome because residential land in Rutherford County typically sells for more than $10,000 an acre.

If Huebner had offered to settle for $9,500 an acre, the county probably would have taken it, Cope said. But the only offer the county received was $14,500 per acre, he noted.

“We did reject that. We thought it was too high,” Cope said.

The Flip Side Of The Opportunity Corridor

In a nasty writing on, an attack is made on the individual leading the charge on the Opportunity Corridor. I have doubts that Terry Eggars really sees this as a conflict. Further, I am doubtful as to whether there is a conflict between his participation as the editor of The Cleveland Plain Dealer and a member of the Development Authority for the City of Cleveland.

There is always a problem in Cleveland because those who are in leadership positions really care about the City. To skewer great anger at these individuals may not make sense given the desire to move Cleveland forward.  But the article below does show a different opinion than that held by this blogger.  ....So it is offered to you.

This project stinks. At more than $100 million per mile, it’s an extravagant highway project in a state that’s out of money. It’s going to result in the destruction of 90 homes and more than a dozen businesses (the vast majority owned by minorities). It’s pretty much right out of the 1960s “urban renewal” playbook — nevermind that highways have drained wealth out of Cleveland neighborhoods for decades.

This project was born — as all admirable projects are — by a group of businessmen from the Greater Cleveland Partnership, including Plain Dealer publisher Terry Eggars (whose skillful handling of the Plain Dealers finances should leave us all reassured.)

Confusing Assessed Value With Fair Market Value

In reading a recent article from Ann, one would think the assessed value on a property in some way relates to fair-market value.

Nothing could be more inaccurate. There is a cap on assessed value, and the assessed value rate in Michigan often has no relationship at all to the fair-market value of property. This is not always the case, but frequently, the assessed value is far less than the fair-market value of property.

First, the assessed value does not always take into consideration the highest and best use of a property. Second, if a property is under-assessed, you will never hear from the property owner requesting an increase in taxes!

David Copi originally bought 541 S. Division in 1987 for $110,000. According to Ann Arbor records, the 0.9-acre property has an assessed value of $204,300, which indicates a market value of $408,600. The property at 543 S. Division, which also is 0.9 acres, has an assessed value of $161,900, indicating a market value of $323,800. Copi uses the properties as an income property, renting it to U-M undergraduates.

Copi said his father received above market value for the two houses.

The lease for one house expired last month, and Copi has not rented it again. Leases for the other property expire in September, although it is possible the university could ask tenants to move out in August.

Nevada Moves Forward With Eminent Domain Restrictions


Kelo has moved almost every State legislature to act. In Nevada, a constitutional amendment may be placed on the ballot, but requires legislative support first. Possibly in order to stifle the constitutional amendment, the State legislature is looking at an eminent domain bill which will prohibit certain acquisitions.

The Assembly Ways and Means Committee passed a bill Wednesday that restricts eminent domain powers after panel members were reassured it wouldn't have a harmful financial effect on local governments in Nevada.

Assembly Bill 102 is a companion measure to a proposed constitutional amendment that limits eminent domain, but it would take effect as early as October while the constitutional change must pass the next legislative session and then go to a vote of the people.

Ways and Means Chairman Morse Arberry, D-Las Vegas, said his committee can't take any chances, so he wanted to hear from those affected by the bill.

Wyoming Limits Wind Energy Eminent Domain

As in so many other States, Wyoming has limited the utilization of eminent domain in order to provide transmission lines from the turbines to the major transmission lines.

This results in requiring an overall agreement and the potential for great uncertainty.

Topic: Eminent domain

Status: Passed and will become effective July 1.

The bill will require companies to pay landowners’ legal fees if a court determines the company did not make a fair price offer during eminent domain negotiations, said Sen. Ogden Driskill, R-Devils Tower, one of the bill’s sponsors.

Picard said the wind energy industry joined oil and gas and pipeline companies in opposing the bill.

It tips the balance in fair market negotiations to the landowner, Picard said.

“I believe, as do other industries, it’s going to have a very chilling effect on infrastructure development in Wyoming, not only in the wind industry but also in oil and gas,” he said.

Driskill disagreed.

“It actually discourages them from going to court,” Driskill said, explaining that the bill clarifies when companies have to pay landowners’ legal fees, which will encourage both companies and landowners to negotiate.

Senate File 142

Topic: Utilities-rate making

Status: Died but lawmakers who are members of the Joint Corporations Committee will further discuss issues surrounding the bill before the next legislative session.

The wind industry opposed the bill.

It would have decreased the amount of money electric utilities could recover for wind energy from customers, Picard said.

Rate-regulated utilities such as Rocky Mountain Power submit to the Wyoming Public Service Commission lists of costs — from labor to office space. The commission considers those costs when approving electric rates. But the bill would have removed utilities’ cost of wind generation.

“They wouldn’t be able to recover the cost of that generation,” Picard said. “It would be akin to being able to recover the cost of the transmission but not the cost of operating the coal power plant or the feedstock that goes into the coal power plant to generate the electricity.”

Schiffer said that he cosponsored the bill to protect coal.

“We have a great deal of coal. We generate electricity very efficiently with coal. We have some environmental things that come up, but even when you factor those things in, wind energy is very, very expensive,” he said. “I don’t mind if states like California want to demand wind generation, but Wyoming has not done that so we should not be charged for that.”


Lower Makefield Irresponsibly Takes On A Losing Cause

In reading the article below, one wonders why such a large increase was awarded to a golf course.

One only needs to read through the article to find that Pulte Homes and Toll Brothers have made offers of almost double the estimated just compensation being paid in order to obtain title to the property. No wonder the final awards approach the amounts offered by the builders.

He described some of the offers received both before and after the property was condemned, including a 1995 agreement of sale with Ryland Homes for $5.1 million and a 1998 sales agreement with Toll Brothers for $7 million contingent upon the condemnation being overturned.

During the testimony, Dalgewicz also described a December 1998 written offer from Pulte Homes, Inc., which offered $8 million for the farm.

The township argued that the Pulte offer was inadmissible as it did not result in a sales agreement and that any testimony concerning the offer would be “irrelevant and prejudicial.”

However, the trial court overruled the objection and further explained it would be appropriate to “let in what was going on with this piece of land in terms of developers from a reasonable time before to a reasonable time after the taking.”

On appeal, the Commonwealth Court upheld the eminent domain condemnation. In addition, the court held that the Pulte offer “was relevant” and could be admitted into evidence as to the market value of the property.

Ohio Farm Bureau Continues Its Positive Activities

The Ohio Farm Bureau is sending a speaker to Seneca County, Ohio, to discuss the issues related to oil pipelines being located in the area.

The Farm Bureau remains skeptical about this process given the difficulty the owners have had with pipeline companies in the past.,2013,Jun,04&c=n

During the briefing Arnold will discuss developments involving interstate, intrastate and local collection pipelines, energy market trends, pipeline construction and remediation standards, the work of the Ohio Power Siting Board and other regulatory agencies governing pipeline development. Issues concerning eminent domain and farmland preservation will be explored, as well as what landowners should consider in negotiating effective easement agreements with pipeline developers involved in interstate, intrastate and local collection network projects.

"Representatives from pipeline and energy development companies are contacting residents in the region and many folks have a number of questions and concerns," said Paul Snavely, president of the Seneca County Farm Bureau. "We understand that these representatives are requesting to work with landowners to conduct preliminary surveys and environmental evaluations across farm ground. The Seneca County Farm Bureau recommends that landowners contacted by pipeline and energy development companies schedule a time for the company to survey the property when the landowner can accompany them in the process."

The initial survey is an important time where the landowner can meet additional company representatives, write down names and contact information, discuss the farm's specific soil and water conservation requirements and note all farm resources and infrastructure that could be impacted during a possible construction project.

Utilities Go To The Market To Obtain Alternate Energy Resources

In a well thought out annotation in The Midwest Energy News, a posting by Ken Pauman covers a number of articles in which utilities are looking to take part in alternative energy resource production. A review of the article covers its annotation of many other important articles covering the subject.

SOLAR: Utilities acknowledge distributed solar energy is a threat to their business models, and seek a way to get in on the action. (Wall Street Journal)

ALSO: A lack of transparency in the solar industry makes it difficult to track the origin of defective panels, and how a new law enables Minnesotans to invest in solar power even if they don’t have a rooftop. (New York Times, Midwest Energy News)

COAL: A federal court decision deals another setback to the proposed Sunflower coal plant in western Kansas. (Associated Press)

OIL: A project to ship North Dakota oil on the Mississippi River is likely scuttled after a Missouri court denies eminent domain for a storage facility, shipping oil by rail is “here to stay,” and a Michigan congressman says a pile of petroleum coke on the Detroit River is “dirtier than the dirtiest coal” and calls for a study of health impacts. (Associated Press, Houston Chronicle, Detroit Free Press)

OHIO: While results of last week’s capacity auction will be good news for ratepayers, Ohio utilities are taking a financial hit. (Columbus Dispatch)

WIND: Developers scale back plans for an Indiana wind farm; Ohio regulators approve a 140 MW wind project near Urbana; and despite a record year for the industry and some of the nation’s best wind potential, Wyoming added no new wind capacity in 2012. (Associated Press, Columbus Dispatch, Casper Star-Tribune)

Opportunity Corridor Monies Move Into Place For Cleveland


Unlike almost any other local newspaper in the country, The Cleveland Plain Dealer covers one of the most important local issues. Transportation is where all of us seem to spend about ten to 20 percent of our time. Only The Cleveland Plain Dealer understands the importance of covering transportation issues. Every community needs a writer like Tom Breckenridge in his position as the Transportation Writer for The Cleveland Plain Dealer.

An important understanding of the funding process and transportation needs is key for the development and continued growth of any community. Clearly, the Opportunity Corridor offers such a benefit in Cleveland. The question is one of whether those who lose their rights to their homes and their businesses are fairly treated.  

Early in 2012, ODOT said projects like Opportunity Corridor faced a decade or more of delays because money for big projects had dwindled.

But Gov. John Kasich found more cash -- at the Ohio Turnpike.

Under his plan, the turnpike will issue $1 billion in bonds later this year, backed by toll hikes.

All told, Kasich expects to raise up to $3 billion over the next five to six years for transportation projects, mostly in northern Ohio.

The governor has said that projects like Opportunity Corridor would be prime candidates for the money.

Early last month, Cleveland joined the local ODOT office in applying for $255 million from an ODOT advisory committee. Some $215 million would be from the turnpike.

Missouri Takes Up Kelo In The Biggest Way


Often, easements granting a right to cut trees is among the most contentious. Easements often provide that power lines be free of any potential vegetation impediments. Owners often have beautiful trees near the lines, protecting not only the view from the lines, but providing aesthetic attractiveness to properties because of the trees. The lesson to be learned is that owners should closely review the easements. There is an argument to be made that laches or failure to timely remove impediments may bar tree removal, but there may also be situations in a written agreement for the utility to enter the property.


A Missouri Supreme Court ruling has essentially scuttled a project to ship crude oil from North Dakota through a Mississippi River port in southeast Missouri.

The state’s highest court ruled Tuesday that the Southeast Missouri Regional Port Authority cannot use eminent domain to take 30 acres of land in Scott County. The port authority had hoped to lease the land to a company that would build large storage tanks there.

The court said the condemnation violated a 2006 state law prohibiting eminent domain from being used solely for economic development purposes.

Did The Newspaper Mistake DRIC Activities?


The May 23, 2013 article in the Windsor Star states that Canada is ready to start buying property in Del Ray.

Upon reading the article, one must query whether the money is delegated for property acquisition or simply for planning the proposed project.

Canada, and so many of us in the United States, only wish the Bridge Project could get moving. However, an appropriate and legal process must be initiated. $25 Million Dollars may be used for planning, but there is nothing authorizing anyone or any institution or government the power of condemnation; at least not yet.

The Canadian government has dedicated $25 million in its recent budget to start buying property in Delray for the new Detroit River bridge, while U.S. federal administrators debate the size and scope of the customs plaza, Canada's Consul General Roy Norton said Wednesday, May 22.

The long-awaited downriver Detroit River International Crossing project is underway following Washington's approval six weeks ago of a presidential permit, Norton told a gathering of the Michigan District Council of the Urban Land Institute who were in Windsor for a tour of the new $1.4-billion Herb Gray Parkway.

"They (U.S. officials) are getting their ducks in a row on what they need for a customs plaza - and that correlates on how much they are willing to spend," he said. "Some feel they need the earth, moon and stars and others are saying that costs are more than they are willing to pay. We expect within months that will be sorted out."

New Mexico Water Company Loses Out


A New Mexico Water Company loses in a Supreme Court decision affirming the Court of Appeals, which had reversed the trial court. The New Mexico Supreme Court found that the water company had no right to customers.

Each of these water franchise cases must be read with respect to the state statute authorizing the water company and empowering its right to a limited or unlimited franchise. In the New Mexico situation, the private water company simply had no guarantee of who it could supply under the statute. 

In a 5-0 ruling, the court rejected Moongate Water Co.'s claims the city stole its customer base and that it deserved compensation for its projected losses.

The court also found that Moongate did not have a right to provide water within a designated area to the exclusion of Las Cruces. It also ruled that Moongate was not entitled to compensation from the city for a possible loss of customers.

"... On the record before us, Moongate has not proven that it had established infrastructure and was already serving customers in the annexed area. Absent such proof of a tangible loss, a public utility is not entitled to just compensation when a municipality lawfully exercises its right to serve in the public utility's certificated area," Justice Edward L. Chavez wrote for the court.

Moongate initially won the case in 2006 before then-state District Judge Robert E. Robles. In 2011 the state Court of Appeals reversed Robles' decision.

With Thursday's ruling, the Supreme Court affirmed the appeals court's decision

Should High Voltage Lines Be Buried?


In the CJ online article, the author covers the Grain Belt Express Power Line. The developer, "Clean Line", questioned the proposed promises made to the State of Kansas for this interstate line.

An interesting alternative of buried lines is raised in this article. It is interesting that power lines from the turbines to the transmission system are buried in some communities. One wonders whether this was considered by the Grain Belt or the utility line developer.

The farmers’ petition also argued that, if the state decided it was in its best interests to sell the power out of state, that Clean Line should be required to bury its lines and to route them through public rights-of-way.

A study of electric transmission in the European Union found benefits to burying cables, including reduced risk to wildlife from electrocution and less frequent maintenance, but also listed drawbacks, including somewhat higher costs and that in some areas it took five times longer to repair underground cables than overhead lines. The study, however, didn’t include direct current lines transmitting up to 600 kilovolts, so the results might be different for the type of line being discussed in Kansas.

Strathman acknowledged that burying lines costs more, but said other concerns about the lines outweigh the costs.

“When it comes to the health of your family and your livestock, and your livelihood, I don’t care if it costs more,” he said.

Lawlor said lines like the one proposed have never been buried, so it isn’t clear if that could be done. In addition to costing more, buried lines are more prone to overheating, possibly disrupting service, because heat can’t dissipate into the air when the line is underground.

North Carolina Attorney General Looses Its Top Eminent Domain Lawyer


Jason Campbell, simply an outstanding attorney, is leaving the North Carolina Attorney General’s office to enter into a private practice.

Humbly, Darius Dynkowski and I note that he worked for us for two years prior to moving to the warmer climate of North Carolina. He was a great lawyer here, and will be a wonderful lawyer, representing people to the extreme in a diligent and fair manner. North Carolina property owners will be greatly benefitted by Jason’s experience, knowledge and integrity.


On May 23, 2013, the NC Eminent Domain Law Firm announced the addition of attorney Jason Campbell to the firm.

Since 2000, Campbell worked as an Assistant Attorney General for the North Carolina Department of Justice, where he represented the Department of Transportation in condemnation litigation cases across the state of North Carolina.

Campbell was the lead attorney on many high-dollar, high-profile cases, such as the 540 outer loop and the largest land-acquisition in Wilmington, NC ever faced by the Department of Transportation in eminent domain up to that point. He’s handled hundreds of cases, involving millions of dollars.

Campbell received his J.D. from the University of Michigan Law School and his B.A from Wayne State University, where he majored in Political Science and minored in Economics.

“We could not have asked for a better fit for our firm,” said NC Eminent Domain Attorney Stan Abrams. “With the addition of Jason to our team, we now have two attorneys with multiple years of experience working for the attorney general and representing the DOT. This level of experience could prove invaluable to our clients.”

Campbell also feels that the firm’s experience will prove to be an asset to their clients.

“I joined the NC Eminent Domain Law Firm because I think they have the experience and resources that will allow me to pursue just compensation for each and every client to the best of my ability,” Campbell said. “I’m very excited to begin working with such a reputable firm and can’t wait to see what we can accomplish for property owners in North Carolina together.”

Log Rolling For Eminent Domain Protections


In a sensible barter, the Democrats and Republicans in Iowa are getting it together on something! The Republicans are seeking more eminent domain restrictions, while Democrats are looking to improve rail passenger traffic between Iowa City and Chicago.

In reality, both proposals make sense, and each party is probably trying to obtain an "exchange" for something they know is good.

What is incredible to this blogger is a perception that over the years, the log rolling that used to exist would be that if a legislator sought to restrict eminent domain in any way, the local State agency would bar any road improvements in that legislator’s district.

What a change!

Earlier this year, a bill with that language — which would make it harder for government authorities to seize private water and land for development — earned widespread bipartisan support in the Iowa House, but didn’t garner enough support from leaders in the Democrat-controlled Senate.

“There’s some concern from county government that it may limit their abilities to access things, but if you read the bill, they can still access water for utility purposes, but you can’t take someone’s land just to make a recreation area,” Jacoby said.

Jacoby said the rail and eminent domain policies aren’t related, but they have commonalities.

“It’s not that the issues are tied, it’s just that both issues are very popular between the two chambers. What we’re trying to do is find some of those issues that most of the public agrees on and move forward,” Jacoby said.

Conway, Arkansas Takes BIG Risk on Scrap Metal Yard Eminent Domain

The Conway City (Arkansas) Council has approved the acquisition of the Conway Scrap Metal Company. Simply because a project looks like it is a "winner", providing some type of argument being the method to take care of flood prevention, always is a risk. A scrap metal company is always a difficult property to appraise and appropriately value. Conway should reconsider what it is acquiring in order to find better and less risky alternative choices.

Two appraisals were preformed in October and November of last year. The city has also entered into the Arkansas Department of Environmental Quality Voluntary Cleanup Program which allows the city to negotiate for acquisition while retaining liability protection for any contamination on the site.

In the memo, Grummer said his goal was to have permission to provide the current owners with a Notice of Intent to Purchase and begin negotiations


Iowa Water Retention Program Faces Opposition

The true situation of NIMBY occurs when there is a real need for property but an individual simply does not want his property to be the property taken.

Osceola, Iowa is an example. Water retention for both drinking and industrial use is mandatory in the area. Nine hundred acres must be acquired for a reservoir. This is a real problem for those who will lose their properties. Yet, safety and economic well-being are well within the Police Power. 

The City of Osceola and other local governments in the area are planning to build a 900 acre lake for drinking water and as a water supply for businesses, like a meat processing plant in Osceola. Developers hope to start buying land for the project this year, but Republican Representative Bobby Kaufmann of Wilton is making one last attempt to forbid Iowa governments from using eminent domain to acquire land for lakes that would be used from recreation.

“This is a good, bipartisan issue and it’s unconscionable to me that we could even think of adjourning knowing that we could save all these folks’ livelihoods,” Kaufmann says.

Kaufmann is trying to get the proposed restriction written into a huge budget bill that’s still pending in the legislature, but it’s unclear if that will happen. Cindy Sanford of Osceola is among the landowners who’ve been meeting one-on-one with legislators to make their case against the lake.

“We’ll lose our home and 172 acres, which is everything we own,” Sanford says. “We’ve owned it — my husband and I — for 24 years and we raised our kids there.”

Taking The Cart Before The Horse

Penn DOT is acquiring land for a proposed train station with no final plans. It is proud that it made a $1,870,000? offer, fully recognizing that may not be the correct amount. What makes the situation all the more interesting is that the plans for the proposed train station have not been prepared. Does this mean that the property may not even be needed? 

“We couldn’t reach an agreed upon sales amount with the owner,” she said. “We [now] have the legal title to the property … and we, associated with that, have offered $1.87 million in just compensation.”

Nardo, who has 30 days to challenge to the eminent domain claim, did not return phone calls seeking comment.

The project has been delayed from its original target completion date of late 2013.  PennDOT is expecting to begin construction in about two years, and plans to complete the project within four years, Waters-Trasatt said.

New Jersey Takes First Step In Response to Kelo

Kelo occurred ten years ago. New Jersey still posits that economic development is simply a necessary evil available under the Police Powers. Eminent domain is considered to be a reasonable tool for such redevelopment.

At least the New Jersey House has passed proposed legislation providing some notice and Due Process. This is a different way of following up on Kelo! 

According to the release, the bill also explains the notification requirements and rights of property owners if a town determines an area to be a focus of redevelopment and authorizes the taking of property by condemnation.

"The new provisions require property owners within such an area to be advised of the municipality’s intention of whether it will use or not use eminent domain at the outset," the release states. "Unless a municipality properly notifies owners, the LRHL will not authorize the use of eminent domain.

“This bill addresses a town’s obligation to inform property owners of its redevelopment intentions in a timely manner, hopefully reduces the need for the use of eminent domain, and provides incentives that foster economic growth and create jobs," Munoz said in the release.

What Must Be Included In A Public Hearing Notice?

In a Columbia Heartbeat article, the author reminded readers that eminent domain may be utilized for the widening of Providence Road in Columbia, South Carolina. The reality is that there is no requirement that notice stating that eminent domain is to be used is necessarily required. One must look to the Environmental Impact Statement requirements and the Environmental Assessments provided by State law in each respective State.

If Columbia, South Carolina did not include what would be required under State Law, it may have another public hearing at some future date, after the case is dismissed.

-- An eminent domain threat that has loomed large in the debate about how to widen Providence Road has been left out of a public hearing notice that provides otherwise complete details about three road-improvement options.

The notice also lists the options out of numerical order, with the most controversial first, the previously rescinded Option IX. The moves remind of other subtle -- and not-so-subtle -- senior city administrator attempts to manipulate the hearing process.

Against opposition from Columbia public works director John Glascock and a group of Grasslands residents, Columbia City Council members on April 15 rescinded Option IX -- a two-phase, nearly $7 million road-widening project that includes demolition of eight historic homes on Providence, across from the University of Missouri.

Another Angry Article Towards Pipeline Companies

In another of the many articles expressing anger towards a pipeline company, a Cameron Texas Herald newsman explained the anger and frustration towards eminent proceedings in the State.

The weak, but anticipated, response of the utility company’s counsel is amazing.

Another Proposed Condemnation Fails

The most certain way for an acquiring agency to fail on its condemnation in its eminent domain proceeding is to not follow a statute. The delegating procedure itself must be followed, but even if followed, a grant of the right to condemn by a body with authority is required in the jurisdiction where the condemnation occurs. A utility forgot to obtain the approval of the Pennsylvania Utility Commission. Failure in the condemnation followed!

The utility filed its eminent domain action in late January 2011, and WMPI filed preliminary objections in mid-February of that year, arguing that PPL did not comply with certain procedural requirements in cases of condemnation.

Specifically, WMPI maintained that PPL failed to seek approval from the Pennsylvania Public Utility Commission prior to moving forward with its declaration of taking.

WMPI argued that this lack of approval nullified the utility’s eminent domain action.

In depositions, PPL officials had testified that the utility didn’t need PUC approval because the existing facilities on WMPI’s land are distribution facilities, that PPL did not seek PUC approval to move or construct distribution lines, and that the utility had no present plans for the construction of new facilities, the record shows

Foreign Company Takes Whuppin in Bridgeport


Bridgeport is still enjoying the benefits of the Kelo decision and is seeking to benefit a prime developer by purchasing a nearby piece of property for assemblage.

The market is the market. Sometimes, a property has value simply because of its size and it is part of a necessary assemblage. Here, we have a developer who has plenty of land, but needs more in order to make a project work. A foreign manufacturing and energy company, Invensys, is stuck in the jaws of an acquisitive government.

That plan fell apart in 2003, shortly before the Comanche project was canceled.

Since then, DiNardo said he's had a hard time marketing the 92,000-square-foot office building Sikorsky was supposed to occupy.

"I have an office building with no parking," he said.

In the past, DiNardo said he has tried to purchase the property from the owner, a British company called Invensys Inc., and even got them to agree to clean up and cap the site before he bought it.

However, Invensys, a major energy and manufacturing company, backed down once it realized the land was worth half the clean up cost, DiNardo said. A call to the company's Foxboro, Mass., office was not returned.

The land is so important to the redevelopment of his sites, though, that DiNardo said he is willing to pay to clean up or cap any contaminated land himself.

"We need the land," he said. "If we don't get it, I'm going to have to knock the office building down."

"We will spend the money to make the project work out," he added, noting that a warehouse or manufacturing space creates far fewer jobs than a barely used office building.

Read more:

A Turnpike in Maine?

The previous Legislature appropriated $300,000 to conduct a feasibility study on whether to build a 220-mile private toll highway through central Maine, from Calais to Coburn Gore. Proponents, led by construction company Cianbro's chairman, Peter Vigue, have argued that the $2 billion plan would create jobs and improve the local economy. Critics question the economics of the project and worry that the plan would damage the environment and natural wildlife habitats. Residents in the area also worry that their land could be seized by eminent domain to make way for the road, which Vigue has repeatedly said won't happen.

Last August, after a backlash from voters in his district, Sen. Doug Thomas, the bill's sponsor, lobbied Governor LePage to slow down the study until eminent domain concerns could be addressed. Debate over the plan has been extremely bitter, and Vigue has been traveling with bodyguards, while Sen. Thomas says he went out to get a concealed handgun permit after receiving threats and dead fish were left around his home in Ripley.

The Maine legislature is having a difficult time in pushing forward for a 220 mile private toll highway.

An east/west turnpike would help development in the State and create jobs. It is unlikely Federal funds would be available for this type of development. On the other hand, the eminent domain and anti-development sentiment raise substantial issues on the likely success of the proposal.

Balancing Coal Against Existing Jobs


Coal excavation offers a great chance to make a lot of money for affected ranch owners. However, construction of the railways through the coal areas will severely diminish the value of many farm and ranch operations. Cutting properties in half will create a far different economic unit than what existed prior to the proposed acquisitions.

While one recognizes the needs to be balanced, one should also recognize that the history and economic structure in the area is premised upon successful ranching. Simply paying just compensation realistically may not be enough.

They could probably go on undisturbed for 100 years more if the earth under the pastures weren’t laced with coal. A consortium led by BNSF Railway Co. wants to build a rail line to carry some of that coal to market. Nine miles of it would run through the McRae ranch.

The McRaes and some of their neighbors say the Tongue River Railroad, and a proposed coal mine at Otter Creek, puts southeast Montana and ranchers like them at risk for an energy plan that mainly benefits Asia.

“It’s going to cross our land, wreak havoc with our water, go through our towns,” Clint McRae said recently, sitting in the rustic wood house his father built, its hearth hewn from local stone.

The Montana ranchers are in the minority. For many others, coal has been one of the few good things to come out of a region so barren it sent many early homesteaders fleeing to greener lands farther west.

Congressman Goodlatte Mistakenly Prefers Federal Controls

Representative, Bob Goodlatte, a Congressman from the Sixth District of Georgia, concludes that Kelo v. City of New London took away property rights from owners.

The real question is did it allow property rights to be controlled by the State? The Supreme Court did not prohibit State action to limit eminent domain proceedings, rather it limited the Federal Court from taking jurisdiction over individual State’s police power determinations.

While we complain about Kelo, we must recognize that the basic concept to federalism survived only because of opinions such as Kelo and Federal Eminent Domain.



In Barron v. Baltimore, Justice Marshall concluded that the first eight amendments of the Constitution, commonly called the first eight Bill of Rights, binds the Federal government only.  The States controlled their own Rights.

If one were to truly look at this closely, one would think the Federal government cannot control State police powers, i.e., eminent domain.  If so each state has the right to make the decision on its own.

The Supreme Court’s 5-4 decision in Kelo v. City of New London was a step in the opposite direction.  This controversial ruling expanded the ability of State and local governments to exercise eminent domain powers to seize property under the guise of economic development when the public use is as incidental as generating tax revenues or creating jobs.  In the wake of this decision, State and local governments can use eminent domain powers to take the property of any individual for nearly any reason.

For these reasons, it is important that Congress finally act. This week, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing on the Private Property Rights Protection Act.  I was honored to welcome Susette Kelo as a witness at this hearing and appreciate her courage in taking her case all the way to the Supreme Court and helping to highlight the plight that many property owners face.

No one should have to live in fear of the government snatching up their home, farm, or business, and the Private Property Rights Protection Act will help to create incentives to ensure that these abuses do not occur in the future. Our constitutional rights as Americans must be steadfastly guarded.

Fair Market Value Can Change With a Different Highest and Best Use

Fair market value can change. Simply because the City valued a lot at $16 Million Dollars and simply because an Owner bought it 3 years earlier for almost the same amount does not necessarily mean that is the value of the property.

The best thing an Appraiser can do is to be as fair minded and make his own determination on what he thinks the value is, and verify it should he chose, with a purchase price but within the last 3 years. However, purchase prices can exceed or be far less than their true fair market value of a piece of property. The City’s simple reliance on a purchase price in Nashville, Tennessee was a very, very big mistake.

The Tennessee Court of Appeals affirmed on Tuesdaya lower court’s decision that Metro vastly underpaid for a key piece of property the city took from a private developer to build the 1-million-square-foot building south of Broadway.

The court-ordered higher price puts Music City Center about $16 million over its original $57 million land budget.

A Nashville jury ruled in 2011 that a 5.66-acre parking lot owned by Tower Investments was worth $30.4 million, which was more than double the $14.8 million Metro offered. Tower Investments purchased the property in January 2007 for about $14.6 million.

City officials have expressed dismay at the thought of a parking lot increasing in value by nearly $20 million in nearly three years.

But Tower’s key argument was that it had deep experience developing property, and it would have built a mixed-use project there that would have earned them much more.

Case Led to Important Changes in Judicial Assignment System



The Tower Condemnation in Nashville was first discussed in this blog 2 years ago. A system in which one judge handles all the eminent domains actions is something that occurs in many jurisdictions. The true problem, all too often, is the individual handling the eminent domain has an "oar" in the water. In the Tennessee case, the oar was a very big one given the judge was related to a member of the law firm representing the community.

The one thing litigants desire is fairness. Being a good buddy with the judge or related to a judge simply skews the system in an unfair and truly unconstitutional manner.

Case led to changes

The legal battle took many twists and turns and resulted in a change in how the local courts handle eminent domain cases.

At one point it seemed like Tower had a losing hand. A jury of view, which is a special panel of real estate experts, initially ruled that the property was worth $16.5 million. And Circuit Judge Barbara Haynes, now retired, upheld that decision.

But Tower argued that Haynes was conflicted because her daughter was a partner at Miller & Martin, the local law firm hired to represent Metro. Tower also took issue with a decades-old courthouse practice of assigning all Metro eminent domain cases to the Third Circuit Court, even though eminent domain cases involving other government agencies were randomly assigned.

Presiding Judge Joe Binkley eliminated the practice of automatically sending cases to the Third Circuit, and Haynes did ultimately recuse herself. When she did, the case was randomly assigned to Binkley’s court, where a local jury ruled in 2011 that fair market value for the land was $30.4 million.

Colorado Fight for Eminent Domain Delegation to Oil Pipelines Continues


Colorado oil delegation fight continues by simply changing one comma in a statute to allegedly "rectify" a mistake, property rights have given rise to a serious debate in Colorado. How much delegation is there to be given to oil and gas companies? Clearly, the delegation was not there before. Despite the initial support for the expansion of eminent domain, oil and gas companies may now see the kick back by the community.

In the House, Senate Bill 13-191 picked up another sponsor this month: Rep. Jerry Sonnenberg (R-Sterling). Sterling and co-sponsor Rep. Angela Williams (D-Denver) told the transportation committee that the bill was just a technical correction to a long-ago statute, and would put back into law common practice of allowing oil pipeline companies the rights of eminent domain.

The bill has continued to pick up opposition during its three-month long trip through the General Assembly. The first was from the plaintiffs in a Colorado Supreme Court decision that SB 191 was designed to overturn. Then it was representatives of irrigation ditch companies in northeastern Colorado that feared the oil companies would run roughshod over their ability to decide when and where ditch crossings would take place. Thursday, major opposition surfaced from Colorado Counties, Inc. (CCI), which represents the state's county commissioners. According to Weld County Commissioner Barbara Kirkmeyer, who testified on their behalf, the bill would grant oil companies eminent domain rights, and "that's what we're afraid of."



Canton, Ohio Newspaper Article Discusses Condemnation Issues

In a report on the Bill of Rights, the covered what has occurred in eminent domain proceedings in the Canton area.

The article begins with the balanced thought that sometimes there is a public use and property needs to be taken. However, the issue of just compensation is one in which the article describes many circumstances in which the offers clearly were simply too low.

You can fight progress — though you probably will lose.

Of all protections provided within the wide-ranging Fifth Amendment, the most controversial piece may be its final 12 words: “nor shall private property be taken for public use, without just compensation.”  

Obviously, founding fathers recognized situations when the government should be permitted to forcefully buy private property. Over the years, the U.S. Supreme Court has been asked to define the breadth and depth of those powers.

Clearly, governments can use eminent domain (forceful purchase) authority to acquire land to make way for such tangible projects as highways or easements for utilities. But what if a city’s leaders want to buy homes and buildings because they’re deemed “slums?” Or, perhaps to clear a path for a private developer to build something new?

Can a government do that?

In short, the answer is “yes.”

Failure of Maryland Town To Follow Statute Creates Dismissal



As so often cited in this blog, State statutes requiring pre conditions, such as appraisals or written offers for negotiation will and must be strictly followed. Otherwise, the agency’s attempt to acquire will be dismissed by the Court.   

 A Superior Court judge has blocked the city's attempt to take a portion of a property on Clinton Avenue by eminent