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.

http://www.columbiaheartbeat.com/index.php/news/headlines/544-051613

-- 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The notice also lists the options out of numerical order, with the most controversial first, the previously rescinded Option IX.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public works director John Glascock and a group of Grasslands residents, Columbia City Council members on April 15 rescinded Option IX -- a two-phase, nearly $7 million road-widening project that includes demolition of eight historic homes on Providence, across from the University of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.

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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.

 

http://www.cameronherald.com/news/article_4c77aa68-bef9-11e2-8a21-0019bb2963f4.html

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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!

http://pennrecord.com/news/10056-commonwealth-court-panel-reverses-trial-court-in-eminent-domain-case-involving-ppl-electric

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

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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.

http://www.stamfordadvocate.com/local/article/Port-Authority-to-take-land-by-eminent-domain-4503974.php

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: http://www.stamfordadvocate.com/local/article/Port-Authority-to-take-land-by-eminent-domain-4503974.php#ixzz2TPtvuD75

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http://freepressonline.com/main.asp?SectionID=50&SubSectionID=72&ArticleID=25680

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.

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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.

http://mtstandard.com/business/ranchers-line-up-against-coal-railway/article_f490b39a-b457-11e2-8592-001a4bcf887a.html

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.

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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.

http://augustafreepress.com/bob-goodlatte-protecting-private-property-rights/

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.

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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.

http://www.tennessean.com/article/20130502/BUSINESS01/305020062/Music-City-Center-dealt-big-blow-ruling

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.

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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.

 

http://www.tennessean.com/article/20130502/BUSINESS01/305020062/Music-City-Center-dealt-big-blow-ruling

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.

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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.

http://www.journal-advocate.com/sterling-local_news/ci_23131113/battle-comma-comes-halt

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."

 

 

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In a report on the Bill of Rights, the CantonRep.com 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.

 

http://www.cantonrep.com/news/x91992345/Bill-of-Rights-Part-5-Eminent-domain-a-tool-for-economy

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.”

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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.

http://articles.courant.com/2013-04-23/community/hc-middletown-eminent-domain-0424-20130423_1_property-owners-eminent-domain-parking   

 A Superior Court judge has blocked the city's attempt to take a portion of a property on Clinton Avenue by eminent domain to use it as part of the Kings Avenue parking project.

In a decision issued April 17, Judge Edward Domnarski said the city failed to share two independent appraisals with the property owners, and therefore did not strictly comply with eminent domain procedures as set by the state legislature in 2007.

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Airports often utilize eminent domain to expand onto nearby properties. As such, one needs to look at what properties are located nearby. Frequently the properties are zoned for industrial uses. Such industrial uses do not have serious concerns with the noise issue. Many other communities place their recreational uses near airports for the same reason. These recreational uses are golf courses or other open space uses awaiting development.

In acquiring areas to expand, airports misunderstand that the recreational use may at some point be converted to a different use; be it industrial or some other use which does not readily fit into the residential/commercial type of environment.

http://www.registerstar.com/news/article_d288e72a-abcb-11e2-82d1-0019bb2963f4.html     

Watz told supervisors on the Economic Development Committee of the Board of Supervisors Monday that eminent domain would be the next step for the county to acquire the property. He said a public hearing would be needed.

Columbia County Economic Development Commissioner Ken Flood has said the county needs the land to comply with FAA regulations regarding a safety zone for landing and takeoffs. That could include a new fenced in safety zone and the removal of more than 130 trees. Two ponds would be filled in as well. Watz said the trees “are a public safety issue.”

The 90 acre navigation easement would cover most of the 96 acre golf course, and place height restrictions on any development there — while leaving ownership to CN Production Management Enterprises LLC, Watz said. In an interview last month, the ownership group’s principal owner Carmen Nero, said the county’s offer was too low and that he would need more money to relocate two holes of the golf course that would be impacted by the county’s acquisition.

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The Wyoming Legislature, recognizing the harshness of the eminent domain remedy and the oppressive strength of the oil and gas industry in the State, has provided a partial fix by legislatively attempting to protect owner rights. How this legislation will work in the long run is open to question. But in the short run, owners will have protections that did not previously exist.

http://www.wyomingnews.com/articles/2013/04/22/news/01top_04-22-13.txt 

CHEYENNE -- Landowner advocates and the oil and gas industry remain at odds over a coming state law that adds protections for property owners during eminent domain cases.

The Legislature approved Senate File 118 during the past session.

The legislation places the burden of proof on developers or government entities to show why their request to use eminent domain to claim someone else's property is justified. Failing that, it allows a judge to dismiss a condemnation case without prejudice.

It also forces the group seeking to condemn property to pay landowners’ legal fees if a judge determines it did not offer them a fair value for the property.

The new law has the potential to impact pipeline or other energy projects in the state. But there remains much disagreement over who stands to benefit or lose once it takes effect on July 1.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said the change should be a win-win for property owners and industries or other entities that rely on eminent domain to move forward on infrastructure projects.

 

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Reading the Duluth News Tribune article about a proposed Highway 53 reroute explains the serious problems in choosing new locations for roads. Balancing the additional expense of a project against the environmental impacts and against the economic impacts makes route choice difficult under the best of circumstances.

http://www.duluthnewstribune.com/event/article/id/264698/group/Business/  

The option of rerouting U.S. Highway 53 through the middle of Cliffs Natural Resources’ Thunderbird mine in Eveleth-Virginia is still on the state’s list of options, even though the company still is saying no way.

Local businesses, state and federal lawmakers and even the Minnesota Department of Transportation lean toward that route because it is the most direct, least expensive and doesn’t bypass any businesses. But Cliffs said last month that the through-mine route simply isn’t workable. And, despite claims by some local officials to the contrary, Sandy Karnowski, Cliffs spokeswoman in Minnesota, said the company has not changed its stand.

“We still do not support that reroute for many different reasons,” Karnowski told the News Tribune on Thursday. “Nothing has changed for us.”

She said Cliffs opposes the through-mine route because of safety and operational concerns and because the new road might cover up valuable ore. Moreover, the route faces federal air-quality regulations enforced by the Environmental Protection Agency for dust.

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It is too difficult for this blogger not to write about a horse named Eminent Domain, overcoming great illnesses, to win an important race at the Randwick Harness Racetrack in Australia. On the same day, please note that Black Caviar retired!

http://wwos.ninemsn.com.au/article.aspx?id=8645803  

Two years ago Eminent Domain was struck down by illness and spent six weeks at a veterinary clinic.

Williams was told to prepare for the worst.

"They were going to give the horse 24 hours and if he didn't show improvement they were going to put him down," Williams said.

"I actually took a bag of our own wheat and hay to the horse. I drove from Goulburn to Camden with it and the horse ate it.

"He has come a long way."

Eminent Domain lost half his stomach due to the illness and has also had his career interrupted by a fractured splint bone, not to mention the various niggles so often afflicting racehorses.

But none of that was evident at Randwick as he swept down the outside to claim the TAB.com.au Sprint (1200m).

Williams said it was a big thrill to win a race on Doncaster day and was happy the four-year-old had finally lived up to his expectations.

"I've put my reputation on the line a few times with this horse and he's let me down but he's had a lot of bad luck," Williams said.

Eminent Domain ($14) had a length to spare over Upshot ($9) with Potions ($17) another long head back third.

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The taking of property for the Clean Line Energy Project expands already existing power line easements in many areas. The question will be one of whether the additional line has some incremental effect or is simply a continuation of the prior projects. The issue in the transmission line cases are not easy, but the damage can, indeed, be substantial.

 

http://www.seattlepi.com/business/energy/article/Wind-energy-plan-tests-power-of-farmers-4450024.php      

               

The first high voltage electric transmission line to dissect their crop and pasture land arrived in 1967, when Sunflower Electric paid Edwards County farmer Anthony J. Brake $1,413 for the privilege.

The second line - taller and with higher voltage - went up just two years ago, running parallel a few hundred feet from the first.

This time ITC Great Plains used eminent domain when many in the area, including Brake's daughter and grandson, couldn't reach agreement with the company on a right-of-way settlement for the 345-kilovolt line, erected to move wind-generated electricity from near Spearville onto the state's electric grid.

Read more: http://www.seattlepi.com/business/energy/article/Wind-energy-plan-tests-power-of-farmers-4450024.php#ixzz2RF6K1aMb

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As Texas is now learning, storage of water may be better underground than in open reservoirs. There is not as much above ground land being taken, the water is preserved indefinitely and underground reservoirs are available. Clearly, water preservation is a public use. One can contemplate the acquisition of underground reservoir properties for a value. The issue will be whether the value is determined premised upon the value to the owner who can use the reservoir or only to the public. We revert the issues of "value to the taker" rules and rejections.

http://www.texastribune.org/2013/04/04/texas-underground-reservoirs-take-hold/

“You don’t flood a bunch of bottomland hardwoods, or take thousands and thousands of acres of cropland out of service,” said James Dwyer, an Austin-based engineer with CH2M Hill, an engineering company.

There are three such reservoirs in Texas — one in El Paso, one in Kerrville and a third in San Antonio. The $250 million San Antonio project, completed years ago, held about 91,000 acre-feet of water as of last October, which equates to about 8 percent of the total volume of Lake Travis near Austin. In the San Antonio project, Edwards Aquifer water that is already cleaned and chlorinated is injected 400 to 600 feet underground into the Carrizo Aquifer. When it comes back up, additional chloride and some fluoride are added before it is distributed to customers.

“I think this will be the future of water storage — it has to be,” said state Rep. Lyle Larson, R-San Antonio, who said he had recently visited the nation’s largest ASR project in Las Vegas, which opened in 1987 and has stored more than 320,000 acre-feet of water. “We can’t just continue to lose 50 percent of our product to evaporation, and our climate’s not getting any better.”

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The Toledo Blade takes a somewhat different and even more positive outlook towards the Detroit International Trade Crossing/ DRIC Bridge than even the Michigan papers. The Blade recognizes the importance to Ohio of Detroit’s second international bridge crossing.

It is interesting to note that the Ohio legislature passed a resolution supporting this proposed International Trade Crossing.

 

http://www.toledoblade.com/Nation/2013/04/13/Detroit-Canada-bridge-receives-U-S-approval.html

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As part of its OPEN route traversing Ohio, Spectra continues with meetings in the affected Counties. The Midstream gas project will be in Cleveland for the next two years. A large number of land acquisitions will be required throughout the route.

 

http://www.morningjournalnews.com/page/content.detail/id/546983/Spectra-outlines-pipeline-project.html?nav=5006  

The Houston-based Spectra announced in December 2011 its intention to build a gas transmission line from eastern Ohio to ship gas from Chesapeake Energy wells in the region to Spectra's Texas Eastern Pipeline, which connects Texas to New York state.

The Ohio Pipeline Energy Network (OPEN), as the project is being called, would begin at the M3 Midstream natural gas collection/processing plant being built off Tunnel Hill Road in Hanover Township. The OPEN pipeline would run south through Franklin and Washington townships before entering Jefferson County on its way to Monroe County.

The M3 Midstream plant will extract natural gas liquids (NGLs) from the shale gas and transport NGLs to a storage and transfer hub being built in Harrison County. The remaining conventional "dry" natural gas can be shipped directly from the facility to market, which is what Spectra intends to do with its pipeline.

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When will the NITC \ DRIC Bridge get a positive sendoff?   We are left with a decision from Secretary of State Kerry!  Below is the Detroit Legal News article on the subject of the Bridge.

http://www.legalnews.com/oakland/1374519

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In an interesting question raised by Xcel in its fight with Boulder, the utility claims the City may provide utility service outside of the City limits without PUC permission.

 

 

 

http://www.bcbr.com/article/20130409/NEWS/130409916

Grosse Ile Bridge Michigan Supreme Court Order:

http://www.leagle.com/xmlResult.aspx?xmldoc=2006942722NW2d220_1936.xml&docbase=CSLWAR2-1986-2006

Xcel Energy Inc. on Monday sent a letter to Boulder's city attorney Tom Carr that said Boulder does not have the legal right to provide utility service outside of its city limits, should the city decide to run its own electrical utility. Such utility service is governed by the state Public Utilities Commission, the letter said. The PUC has ruled that Denver-based Public Service Co. of Colorado, an Xcel subsidiary, has the right to serve those customers, the letter said.

Carr responded in a letter that "we respectfully disagree." The state constitution's language regarding home-rule cities gives Boulder the authority to serve customers outside the city, Carr wrote.

Specifically, a home-rule city, "shall have the power, within or without its territorial limits, to construct, condemn and purchase, purchase, acquire, lease, add to, maintain, conduct and operate water works, light plants, power plants, transportation systems, heating plants and any other public utilities or works or ways," Carr wrote in his letter.

Each state has its own Public Service Commission. Public Service Commissions are referred to as PUC’s or PSC’s in addition to a number of other designations. However, the Commissions have specific delegated power. In some jurisdictions, the Public Service Commission is delegated the authority to prohibit or grant authority to a community to acquire property outside of the its limits. Each is premised upon the constitutional and legislative intent of the state. For an example, see Township of Grosse Ile v Grosse Ile Bridge Company, 722 NW2d 220 (2006).

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In another attempt to stop the second bridge span, Mr. Moroun is seeking relief from the Federal Bench, in maintaining that there is no authority in the Secretary of State to allow the second span to proceed. A copy of a portion of the Complaint is below.

A basic tenet of our government is that we have distribution of power in the branches of government. We have a legislative branch which determines the law, an executive branch which enforces the law administratively and a judicial branch which reviews improper activities by the other branches.

Since the first major United States Supreme Court decision, our judiciary has consistently maintained that relations with foreign power is an issue to be dealt with by legislative delegation and executive administration.

In Ware v Hylton, a United States Supreme Court Case (1796) the United States Supreme Court laid down a clear rule that the federal government can maintain the supremacy of a treaty over any state laws to the contrary. It was on this basis that even had the referenda opposing the Bridge succeeded, the United States Government could have superseded the State’s objection to the Detroit River Crossing.

 

I PREDICT IF THIS COMPLAINT IS THE BEST THAT THE OPPOSITION TO THE DRIC\NITC BRIDGE CAN PRODUCE, THE BRIDGE WILL BE APPROVED WITHIN WEEKS.

 

Continue Reading...

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On January 21, 2013, this Blog wrote about a situation in which taxation may be so overburdening that the activity is effectively a taking. Small property owners have little opportunity to challenge a tax assessment. The costs, efforts and delay are so excessive that almost no residential owners challenge the City of Detroit over assessments.

Apparently the Michigan State Tax Commission has the same concern. On its own volition, the Tax Commission is reviewing whether the City of Detroit potentially over-assesses properties.

The net effect of this occurrence is that the properties are being "taken" by the activity of over-assessing! 

http://www.detroitnews.com/article/20130409/OPINION03/304090326 

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The balancing of water conservation is challenged by the question of whether private property should be lost for water retention. The reality is that the recreational purpose involved in the creation of retention lakes may not be a public use per se, but the need for water is so substantial in many States (such as Iowa), that the power to acquire via condemnation is a necessity. In reality, recreation is a public use in and of itself. The harsh relief sought in limiting acquisitions for water retention must be balanced against the public need.

http://www.desmoinesregister.com/article/20130408/NEWS10/130408023/Eminent-domain-bill-s-death-brings-grief-House-Speaker-relief-mayor 

The failure of a bill that would restrict the use of eminent domain to acquire private land for a recreational lake is being cited by Iowa House Speaker Kraig Paulsen as a big disappointment for the 2013 legislative session.

However, Osceola Mayor Fred Diehl contends that one provision of the legislation could have jeopardized the development of a new reservoir that’s “desperately” needed to provide drinking water and to spur economic development in the south-central Iowa community.

House File 219 died in last week’s second deadline or “funnel” for bills to advance in the Iowa Legislature. The measure had passed the Republican-controlled House 93-6, but didn’t advance in the Iowa Senate Judiciary Committee.

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Below is an Opinion of the Sixth Appellate District Court of Appeals in Ohio.

This Sandusky County Appellate Division had a real understanding of the power of mandamus. Additionally, the panel clearly explains the procedural process for mandamus action in Ohio. In many States, including Ohio, the mandamus action is commenced at an Appellate level rather than the Circuit Court level. Ascertaining how to seek inverse condemnation relief through the mandamus process is one of the trickiest activities in legal procedure. This Opinion is well worth reading!

http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2013/2013-Ohio-762.pdf

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The Kansas Farm Bureau Legal Foundation lawyer, Mike Irvin, touched upon an issue of whether farms were simply subsidizing the electric and gas transmission industries.

The reality is that owners are to be paid "fair" compensation. The further reality is that owners of farms want to maintain their farms for indefinite periods of time. Simply being paid one-time compensation does not cover the true just compensation.

Public Service Commissions are extremely limited in the actions they may take. Most view the power of their Commission as simply one of whether there is a delegation for the Commission to authorize an eminent domain activity as part of the Commission’s authority. Whether Commissions can have a "tipping fee" payable as a percentage of the total gross revenues to owners has not been dealt with. However, the process certainly would be a fairer one.

This is the type of issue that should be analyzed by my College Junior son whose concentration is in applied mathematics and statistics.

http://www.indyrepnews.com/section/3/article/2914/ 

Are Kansas landowners subsidizing the construction of a growing network of electric transmission lines across the state and beyond?
Attorney Mike Irvin, director of the Kansas Farm Bureau Legal Foundation, thinks so.
“I don’t think we’re getting just compensation ... and our hands are tied behind our backs,” he said.
Irvin spoke to about two dozen landowners Monday night in the community room of the Ellsworth Municipal Golf Course. The session was sponsored by the Ellsworth County Farm Bureau

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In a Bandera, Texas, article, the author, quoting a San Antonio lawyer’s explanation of what the authority to use eminent domain consists of and what the delegation includes, offers a very short, simplistic, but, for the most part, accurate synopsis of the eminent domain process.

http://www.banderabulletin.com/news/article_c98d8a5a-9d2e-11e2-9d9f-0019bb2963f4.html

 

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The City Economic Director requested that the community approve a delegation of the power of eminent domain, a procedure which is necessary to move forward with any condemnation of the Dillard’s store.

This Blog has consistently posited that the taking of this privately-owned property simply for economic gain is not appropriate. If this conduct can happen, could the communities with K-Marts simply have acquired the K-Mart leases and sold them off, barring K-Mart from the benefit of its own bargain?

http://www.ncbr.com/article/20130408/NEWS/130409920

City council members, acting as the Longmont Urban Renewal Authority, or LURA, will consider a recommendation from Brad Power, the city's economic development director, to authorize the use of "eminent domain," according to an agenda document posted on the city's website. "Eminent domain" is a term used to describe a government's legal right to take private property for public use after compensating a property owner.

"Staff and LURA legal counsel have determined that the prospect for a successful and timely resolution to the negotiations between (mall redeveloper) NewMark Merrill and Dillard's is no longer feasible," the agenda document said.

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An article prepared by John K. Ross offers an interesting set of questions.

Inadequate street layouts, faulty lot layouts, obsolete platting and excessive vacant land may be cause for an eminent domain proceeding. However, to simply allow the government to acquire in order to turn the property over to private ownership, especially when the buyer is chosen only because the buyer is big enough to afford a large development, probably will not fulfill the Constitutional requirements of the Alabama State Constitution. Kelo leaves the decision to each State to determine whether economic benefit for private parties is within the police power parameter. However, Alabama has that sense of populism which will likely limit the inequitable behavior.

http://wonkmeme.com/posts/hit-run/alabama-brings-back-eminent-domain-private-gain  

This month, Alabama Governor Robert Bentley signed into law a bill that allows local officials to condemn private property and turn it over to private developers.

Alabama’s statutes had contained some of the best protections in the nation for property owners; officials couldn’t seize property for private development unless it was a true threat to human health and safety.

Welcome back to the bad old days.

Advertised as a tool to attract industry to Alabama, the new law (the Major 21st Century Manufacturing Zone Act) expands tax subsidies for companies that open a manufacturing facility of at least 250 acres. It also allows municipal officials to seize property for “private uses and purposes imbued with a public interest” like auto factories, biomedical facilities, and pharmaceutical plants.

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The Courier News article about properties being taken in Elgin, Illinois, makes one wonder whether IDOT is making fair offers. When a government effectively closes down a gas station, a total taking offer is required. Do people have to go to court every time in order to obtain fair compensation from the local Department of Transportation? One would hope not.

 

http://news.silobreaker.com/interchange-work-in-elgin-may-doom-some-mclean-boulevard-businesses-5_2266712411509620764

ated: March 29, 2013 9:50AM

ELGIN — Thirty-four years ago, 10-year-old Tung Tran fled from Vietnam into the open sea with 102 other refugees in a small boat intended only for river use. Today, living the American Dream, he works 84 hours a week running his own gas station and convenience store on Elgin’s west side.

But sometime in the next few months he will lose that and all the money and sweat he has put into it over the past nine years — not because the business is failing but because the state of Illinois wants a third of its property and, he says, state officials refuse to admit the station can’t go on without that.

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http://www.nytimes.com/2013/03/31/us/oil-pipeline-ruptures-in-arkansas.html?_r=0

Spilling 200,000 gallons of crude oil is always a problem. However, one should note the quick reaction of Exxon Mobil in placing the booms to contain the oil and bringing in enough vacuum trucks to attempt a rapid and complete clean up.

When utilities and oil companies want to work quickly to minimize the damage, there certainly is a different attitude about a spill.

 

The local authorities said in a statement on Saturday that 22 homes in the vicinity of the spill had been evacuated.

As soon as the spill was detected, the pipeline was shut down and isolation valves were closed to prevent further leakage, Exxon Mobil said in a statement.

About 2,000 feet of boom was set up to contain the oil, and 15 vacuum trucks were deployed to clean it up, Exxon Mobil said. About 4,500 barrels of oil and water had been removed by Saturday evening, the company said.

Crews were working to make sure no oil entered nearby Lake Conway.

The Environmental Protection Agency classified the leak as a “major spill,” Exxon Mobil said.  

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New York has an obvious advantage over most other States. It has so many profit-making public authorities that it can frequently find a new source of matching funds out of one of the authority’s profits.

Such is the case in the New York Robert-Moses-Parkway plan in the Niagara Falls area. The New York Power Authority makes enough money that it has access and an excess of funding. The community has, therefore, looked to the Power Authority for part of the "match".

http://niagara-gazette.com/local/x1121361270/Wednesdays-the-deadline-for-public-comments-on-the-three-options-for-the-Robert-Moses-Parkway

No funding source has been identified for the remaining phases of the removal project, which includes both the north and south sections of the parkway.

But officials working on the project at all levels of government have said that they are confident that a funding source will be identified by the time the project is ready to go out to bid.

U.S. Rep. Brian Higgins, D- Buffalo and Niagara Falls, began representing the Falls this year after winning his bid for the redrawn 26th Congressional District of New York.

In one of his first public appearances in the Cataract City after becoming its federal representative, Higgins called for the New York Power Authority to pay for part of the removal project.

He said that the power authority, which evicted the people who lived in where the road now runs and took the land through eminent domain — should contribute to the removal project, asking that they put $120 million towards the project during the January visit. He also cited the Niagara Power Project’s outsized contributions to the authority’s profits as a reason that NYPA should help fund the project.

“We have a rightful claim to that money,” Higgins said.

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Columbia County, New York, politicos have not been fully fair in their attempt to acquire an easement from a golf course. The government officials leave the impression that money will be unavailable because of sequestration. In reality, sequestration is not permanent, and it is likely sequestration will no longer be an issue by the time the proposed airport expansion occurs. Yet, to inform the community that the runway will not be long enough and jets will not be able to travel is not true. As such, it is not fair to provide the public with gross inaccuracies.

http://www.registerstar.com/news/article_f0d5ad12-98f2-11e2-93a7-001a4bcf887a.html  

“We agreed to do a layout of the plan and a layout of the hangar,” he said. “The idea is to bring in, not take, revenue from the county.”

So he said he will approach the supervisors for a lease of land for the hangar in the future. He told Supervisor Art Baer, R-Hillsdale, he has no idea when the purchase of land from Meadowgreens owner Carmen Nero will go through.

In December, Flood said 95 percent of the costs would be reimbursed by the Federal Aviation Administration, with the remainder being covered by the state.

“The FAA is very clear,” Flood said Monday. “With sequestration, you’ll go beyond when the money’s available. The money is there now, in a federal grant.”

Supervisor Art Bassin, D-Ancram, noting that this information had been obtained second-hand, indicated he wanted more assurance that this money is actually there.

“The next step is condemnation,” Baer said.

“What happens if we don’t get this land?” asked Bassin.

“We’ll have to shorten the runway by 800 feet, there will be no more jets or charters,” Flood said. Richmor Aviation, the airport operator, employs 40 people, he said, suggesting their jobs would be at risk.

“Can we do eminent domain?” asked Supervisor Sarah Sterling, D-Hudson1.

“We’re limited to market value,” said Baer, who used eminent domain in creating the Hillsdale sewer system.

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Reading the attached article on PennDOT, only in the conclusion does one learn that the original plans are what will be utilized by PennDOT.

The article’s hostility toward PennDOT is premised partially on the failure to fairly notify owners of the situation. However, the underlying issues of corruption and misuse of funds by PennDOT is what really creates the anger permeating the article.

http://lancasteronline.com/article/local/829296_PennDOT-seeks-land-condemnation-for-Gap-bypass-project.html

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The Wyoming legislature now recognizes the potential for inequity in the eminent domain process. The article notes that while some energy companies treat people fairly, others are totally abusive.

A fair eminent domain statute is the greatest protection for property owners and properly run utilities. It assures all at least a minimal protection.

http://trib.com/opinion/editorial/a-win-all-around-for-wyoming/article_8eaa333b-a9da-563f-8976-37b3cdc55ea0.html

When the process works well and equitably, the energy companies -- or any entity -- condemning property via eminent domain will compensate the property owner at market value, essentially making the owner whole, even if disgruntled.

When done poorly, it's nothing short of legalized stealing, forcing owners to abdicate land.

The latter scenario is just what lawmakers had in mind as they passed the bill that essentially requires companies or government to negotiate in good faith, offering market value for property, or risk paying legal fees of the property owner.

The legislation was directed squarely at energy companies, which often depend on eminent domain laws to gain rights to land if a settlement can't be reached. But before this law was passed, there was no requirement forcing companies to offer market value for the land. There still is no law requiring fair market value, but there is a punishment for those companies that don't do so. They might wind up paying the attorney's fees.

We believe this law will simply expedite the process, which can be drawn out already. 

There will no longer be an incentive to low ball property owners and use strong-arm legal tactics to force owners to settle for less. 

Before the law was passed, there was a certain dubious strategy to driving a hard bargain with property owners. That is, companies needing access or rights to the land could low ball property bids and then sic an entire legal team on an individual property owner. These types of matches were inherently unfair. An individual would have to spend money on lawyers in what often turned out to be an unfair, inevitable fight. What little money would be gained from a higher property sale price would likely be devoured in attorney's fees.

The Wyoming Legislature has now leveled the playing field. It potentially puts any company or entity not acting in good faith on the hook for legal fees. Now, the risk is reversed. For companies pondering a low-ball bid on property, it's just not worth the risk of having to pay attorneys' fees on both sides. What little savings would be achieved would be eaten up in attorneys' fees.

We also praise Gov. Matt Mead for signing this bill into law.

This new process should get both of the sides -- the property owners and the companies looking to purchase rights -- to the end result faster. It doesn't draw out the process anymore than necessary. Companies now have to consider fair-market value for properties. And, it should be noted that many companies do offer reasonable, fair-market prices. Delaying energy projects for what amounts to pennies simply isn't worth it.

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In reading the Detroit News article regarding the rail tunnel, one finds some interesting issues at hand. What if the funding sources of the Federal government of the United States as well as the Dominion of Canada fail?

Second, the rail tunnel may have an affect on bridge traffic.

One must wonder if the rail tunnel and the DRIC Bridge have a relationship, which will be better exposed in the next few months. Is the funding shared for a reason?

http://www.detroitnews.com/article/20130325/METRO/303250345

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It is interesting that so many flooding blogs are provided in this week’s articles. However, Ann Arbor recognizes the problems of towns such as Columbus, Nebraska and Delaware County, Indiana.

The Washtenaw County Drain Commission is attempting to aggressively protect owners’ rights by modifying the storm water retention process around Ann Arbor.

http://www.a2gov.org/government/publicservices/systems_planning/waterresources/Pages/UpperMallett'sCreekStudy.aspx

The Upper Malletts Creek Improvements Opportunity Study project is a joint effort between the City and the Washtenaw County Water Resources Commissioner’s Office* to evaluate and identify opportunities for conveyance and stormwater improvements in a portion of the Malletts Creek Drain Drainage District, specifically the sub-watershed area bounded by Ann Arbor-Saline Road, I-94 and Scio Church Road.

*For more project information, click here to open the Washtenaw County Water Resources Commissioner's Office's project website in a new window

 

On March 15, 2012, a large storm event resulted in surface ponding and street flooding in the southwest area of the City, particularly in portions of the Churchill Downs and Lansdowne subdivisions, which are within the Malletts Creek Drainage District.  It is the City’s and WCWRC’s intent to identify opportunities for stormwater conveyance and stormwater quality improvement in this sub-creekshed drainage area.  Potential opportunities may include but are not limited to detention, pipe upsizing, and green infrastructure (low impact development) to improve overland flow issues beyond the delineated floodplain in the upper reach of the Northwest Branch of Malletts Creek.

Malletts Creek is an established Chapter 20 County Drain.  Therefore, any work to study and evaluate the County drainage system falls under the jurisdiction of the Washtenaw County Water Resources Commissioner.

For more information, please click here to open a PDF (2 MB) project handout and map of the study area.

Much of Malletts Creek is contained in underground piping that carries stormwater runoff from the urbanized areas of Ann Arbor.  Nearly 37% of the land draining to the creek is impervious, and as a result, stormwater frequently enters the creek too quickly, causing localized flooding during rain events.  These rain events also carry pollutants from impervious areas to the creek, lowering water quality.  Malletts Creek falls within the area of the Huron River watershed that has a Total Maximum Daily Load (TMDL) requirement for phosphorus and E. coli from stormwater set by the Michigan Department of Environmental Quality (MDEQ).  In addition, Malletts Creek has a creek-specific TMDL for Biota, which is attributed to unstable flow regimes, reduced bank stability, bank erosion, sedimentation and reduced stream quality due to excessive runoff/washout throughout the highly urbanized watershed.

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The Nebraska Supreme Court recently applied a standard which is utilized in many jurisdictions. The standard simply is one that the first flooding is "free" to the government, but does not create a cause of action for inverse condemnation the first time the flooding occurs.

http://journalstar.com/news/state-and-regional/nebraska/columbus-homeowners-lose-battle-over-sewage-flooded-basements/article_ce9a4b75-7028-5a5f-a393-f966ab0c8570.html

The high court said the main issue in an inverse condemnation case is to determine whether the property in question was taken or damaged as a result of a government exercising its power of eminent domain to take private property for public use.

The Nebraska Constitution forbids the taking or damaging of private property without fair compensation.

But that law "is not a source of compensation for every action or inaction by a governmental entity that causes damage to property," Judge Lindsey Miller-Lerman wrote for the high court.

Based on previous court decisions, successful inverse condemnation cases must show that a government intended or could foresee its actions would result in the taking or damaging of private property.

In the Columbus homeowners' case, there was only evidence of a single event of sewage backup, and evidence presented during the trial showed similar actions by the city's sewage workers had not caused sewage backup at other times, Miller-Lerman wrote. No evidence was presented that showed the city knew that restarting the sewage pumps would damage private property, she said.

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An energy specialist with the Ohio Farm Bureau explained to Stuebenville property owners that simply leasing for a payment may destroy the long-term use of a property.

People need good advice to obtain a reasonable agreement with sophisticated oil and shale leasing companies. The Ohio Farm Bureau recognizes the problem and that is why they are speaking so actively and accurately.

http://www.hsconnect.com/page/content.detail/id/584440/Landowners-told-to-be-careful-before-signing-gas-lease.html?nav=5010

 An energy specialist with the Ohio Farm Bureau told landowners Tuesday to do their homework before they ink a deal with a pipeline company.

Dale Arnold, director of energy services with the Ohio Farm Bureau, told a crowd of about 75 people attending the forum, sponsored by the GO Jefferson County committee, that the rules change depending on whether a particular pipeline is considered interstate or intrastate, or if it's merely a collection line. GO Jefferson County is the new name of the former Jefferson County Oil and Gas Committee formed in 2012 by the Jefferson County commissioners.

Arnold said the governing body for each type of pipeline is different - interstate pipelines fall under the Federal Energy Regulatory Commission, while intrastate lines are overseen by the Public Utilities Commission and Ohio Power Siting Board, and collection lines are in the Ohio Department of Natural Resources bailiwick. So are the rules.

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The proposed New Jersey State Senate bill is a different reaction to Kelo than elsewhere. While claiming it’s proposal of protecting owners, it clearly does not do the job. New Jersey, as so many other states, could easily pass legislation limiting economic development to condemnations, but has chosen not to to date and continues with the committee approved proposal.

http://www.politickernj.com/63717/van-drew-rice-bill-update-state-eminent-domain-laws-clears-senate-community-urban-affairs-comm

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The Commonwealth Pipeline is viewed by many as fait accompli.

On the one hand, it will cause tremendous harm to the community on an environmental and economic term. On the other hand, the attached article notes the commentor who noted that this would be "the future of energy" and create a better environment. These two diverse views are an interesting commentary on the pipeline issue.

http://readingeagle.com/article.aspx?id=455356

Continue Reading...

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The South Carolina acquisition of a viable business with eleven years on its lease is not simply the rent paid or simply a calculation of the differential between the contract and fair rental value. The reality of the situation is that retaining the control of the property for appropriate uses is a basic right for owners. The valuation is not simply a mathematical calculation, but rather a recognition of the value of an on-going business being delimited by the taking.

http://greertoday.com/greer-sc/warehouse-standoff-throws-wrench-in-inland-port-progress/2013/03/13/

The South Carolina State Ports Authority (SPA) is threatening to use the power of eminent domain to end a lease with a storage company that is refusing to leave on property planned for a $35 million inland port in Greer.

Enlarge photo

Jim Fair

Nordic Cold Storage, background, has reportedly 11 years remaining on its 30-year lease with the South Carolina State Ports Authority (SPA).  The Authority is threatening to use the power of eminent domain to end a lease.The Charleston Post and Courier reported the SPA needs property leased by Nordic Cold Storage, headquartered in Atlanta, a warehouse that operates on three acres of property near the middle of the planned inland port. 

Nordic has 11 years remaining on its 30-year lease.  An appraisal determined the value at about $900,000, according to the newspaper.

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Frequently, local authorities desire to regulate activity within their own respective communities. The idea of municipal control is an underlying policy in almost every State constitution. However, there is a limitation on municipal control available when state legislation delegates powers to the State for regulation. Utility regulation is often a state-wide form of regulation. Frequently, when local governments attempt to enact limitations on public utility activities within the local jurisdiction, State legislators will initiate legislation which delegates the authority and control to a State regulatory body

http://stateimpact.npr.org/texas/2013/03/08/bill-would-change-how-local-governments-regulate-drilling/  

“Local control” is a term you hear a lot of from Texas elected officials. That’s no surprise in a state where lawmakers extoll the benefits of limited central government and bottom-up policy making. But, according to some, there are also times when local regulations can become confusing and cumbersome. Specifically, when they pertain to regulating oil and gas drilling.

“Tarrant county is a great example,” State Rep. Phil King (R-Weatherford) said at a recent panel discussion on the oil and gas boom hosted by StateImpact Texas. “[It has] 34 municipalities within the county each one has different laws regarding drilling. In fact, there’s one community that’s completely outlawed any drilling.”

A bill filed this legislative session by State Rep. Van Taylor, R-Plano, would not take away the right of local jurisdictions to pass those restrictions, but it may make them much more difficult to accomplish.

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Sunoco Logistics, facing strong opposition from residents near the proposed pipeline route, has figured out how to resolve the situation. Quite simply, Sunoco will re-route the pipeline through a less dense area in order to avoid the effects on individual properties. Smart move! 

http://triblive.com/news/allegheny/3624387-74/pipeline-gas-move#axzz2NHGHlPMo

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When will the Secretary of State approve the Bridge Crossing?  This delay makes doing businesses in the area under the cloud of condemnation and hostage to a decision that should have been made months ago.

 

http://www.dbusiness.com/Blogs/Annual-2013/Is-the-Proposed-Bridge-Between-Detroit-and-Canada-Off/

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A port is proposed for Erie County, Ohio which will use about 700 acres of land for the redevelopment. Eminent Domain may be required. The Erie Times - News article written by Kevin Flowers does recognize that with the difficult economic times, there is little debate over whether to proceed for economic development.

There is something about water usage that creates a different attitude towards redevelopment and the use of eminent domain. The historical relationship between the government and water usage has an effect of removing anti-Kelo dissent to at least a degree.

http://www.goerie.com/apps/pbcs.dll/article?AID=/20130301/NEWS02/302289876/-1/newssitemap   

ALBION -- Jerry Hall has watched more than a few multimillion-dollar economic development proposals come and go in western Erie County.
He remembers talk, in the mid-1990s, that Canadian steel-makers might build a $400 million mill near Lake City and create 400 jobs.

It never happened.Years earlier, a new power plant was rumored for the area.
It didn't materialize.
Neither did a proposed Saturn automobile factory, or a new production facility for Miller Brewing Co.
But Hall, the president of Albion Borough's council, gets a different vibe from the $50 million-plus Erie Inland Port project.
The ambitious plan -- focused largely near Albion and Cranesville and spearheaded by the Economic Development Corp. of Erie County -- aims to develop a large-scale logistics hub in this region.

 

 

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The City of Toledo recognizes that the EPA will require to expand its water plant. For the time being, the City will offer normal "willing-buyer, willing-seller" options to owners.

http://www.toledoblade.com/local/2013/03/06/Toledo-City-Council-sets-aside-funds-for-plant-expansion.html#hrpiuZfTbTmv2arv.99

 

The difficulty with this process is that now that owners are under a Notice of a future eminent domain action, there will be no "willing buyers" in the market. Hopefully, the City will move forward to an eminent domain proceeding on those properties because it knows it is the only potential buyer.  This is not fair to the owners.

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The Lorain City Council has finally approved the widening of Jaeger Road. The twenty foot easement widening will have some affect on the adjacent properties, and many objections have been raised by the adjacent owners. There are so few road widenings in the upper Midwest made by cities, this comes almost as a surprise.

http://morningjournal.com/articles/2013/03/02/news/doc5131815a23075100151955.txt

Lorain City Council will consider borrowing $5.25 million through a bond issue that will pay for new street resurfacing.

Council also will consider 20 resolutions of necessity for the city to use eminent domain to appropriate land for widening Jaeger Road.

Some of the easements are permanent for Jaeger Road, while some are temporary for storage of materials and equipment during construction, said Assistant Law Director Don Zaleski.

The road has a right-of-way that is 40-feet wide from edge to edge, said city Engineer Dale Vandersommen.

The widened road will have a right-of-way that is 60 feet wide, Vandersommen said.

The Engineering Department has a consultant that already made deals with most of about 82 property owners who will be affected, he said.

“These are properties where negotiations have pretty much broken down for right-of-way acquisition on Jaeger Road,” Vandersommen said. “We need to acquire 10 more feet on either side of the road.”

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In a potentially very complex situation, the Oklahoma City Urban Renewal Authority is now seeking to acquire the old railroad station facility. The railroad station was purchased as a dilapidated depot, and money has been spent to fix the location up. A tenant has moved in and the owners hope for more tenants.

 

The Authority is apparently publicizing its offer and has received a response from the owner. Hopefully, the case will be presented fairly as part of the Court process in the near future if the parties cannot arrive at an agreement. The present public relations posture bodes ill for both.

 

http://newsok.com/urban-renewal-prepares-eminent-domain-action-against-owners-of-santa-fe-train-depot-in-oklahoma-city/article/3761735

 

Brewer said Tuesday he still hopes to provide the city with an appraisal being done on his behalf, and called the $23.5 million a “starting point.”

“I'm still in due diligence,” Brewer said. “My appraiser isn't done with his work yet; it's a difficult property to appraise.”

Brewer could not estimate how much his family invested in the once-dilapidated depot. County records show Brewer's father, the late Jim Brewer, bought the depot in 1998 for about $375,000 and used a $1 million federal grant toward renovations. Jim Brewer reported at the time of the renovation he estimated the entire project cost about $2 million.

The depot is nestled between Bricktown and downtown and is where Amtrak's Heartland Flyer starts its journey to Texas each morning and ends its return to Oklahoma each night.

 

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To the consternation of many of environmental groups, the CAPX2020 major transmission line is continuing. Enough factual support was presented by the utility regarding the lack of transmission capacity along the proposed route for the system to be at risk to obtain approval of a certificate.

Of great interest is the "buy out the farm" law which exists in Minnesota. This should have helped many arrive at a reasonable arrangement with the utility company for what is not a good situation for owners.

http://lacrossetribune.com/news/local/land-negotiations-under-way-in-capx-power-line-project/article_fc93535e-83ba-11e2-a91f-001a4bcf887a.html

Though he’s heard the utility will take care of it, Stomness would like some guarantees.

“They’re going to come through there, no ifs ands or buts about it,” Stromness said. “We just want a few things clarified, and they won’t give it to us.”

Though he’s not interested, Stromness has one option not available to those on the Wisconsin portion of the line.

In Minnesota, where other transmission lines have been under construction for several years, landowners are taking advantage of a little-known law — the only one of its kind in the nation — that allows them to get out from under the lines by forcing the utility to buy them out entirely.

Passed in 1977 after construction of another high-voltage project led to violent protests, the “buy-the-farm” law has rarely been invoked in the past 35 years.

“Nobody’s a specialist in buy-the-farm,” said Minneapolis attorney Rod Krass, who represents about 65 landowners along the route. Of those about half have elected the buy-the-farm option.

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The ATEX Express Pipeline will acquire property for a 200 mile plus stretch in Ohio. The pipeline does bring some short-term jobs, but does tend to tear apart operations on many properties.

Each property is affected in a different way by the pipeline installation. Some properties may not be substantially damaged, while others are effectively destroyed by  the easement and its use.

http://www.daytondailynews.com/news/news/underground-pipeline-coming-through-ohiogovernment/nWhMb/

Local governments along the pipeline route are looking forward to the latest infusion of new tax revenue once the project begins transporting ethane early next year. But some property owners are upset about interruptions during construction and the taking of property easements for the project. Those residents are resisting efforts to get them to grant construction — and permanent — easements.

The project is expected to begin in April. According to Enterprise, the pipeline will cross 265 miles in 13 Ohio counties, including Greene, Warren and Butler and create hundreds of jobs — the vast majority during construction.

“We’ve already started clearing the right-of-way in preparation for construction,” Rick Rainey, spokesman for Enterprise Pipeline, said last week. “There’s not any situation at this time that would lead us to believe it would cause a delay in construction.”

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A freshman lawmaker proposes allowing acquisitions for renewable energy transmission line "lanes" without seeking approval of the Public Regulation Commission.

When an agency can make its own determination, without review from a State regulatory commission, the necessary public delegation required in almost every State Constitutional would simply be lacking. Decisions for private entities need to have some type of governmental review and control. See County of Wayne v Hathcock.

http://www.lcsun-news.com/las_cruces-news/ci_22667538/reta-bill-makes-it-through-nm-house-heads 

To McCamley, the bill is simple: It gives RETA until 2017 to identify "lanes" for renewable energy transmission lines and lets the agency use eminent domain when necessary without first seeking approval from the state Public Regulation Commission.

"Without the lanes, we don't get the lines," McCamley said after the vote. "Without the lines we can't develop more utility-scale wind and solar in the state. Publication after publication has lauded the fact that New Mexico could be a leader in large-scale wind and solar."

Electric utility lines are near capacity and can't carry more electricity for future needs, utility companies say. New transmission lines are needed for both conventional and renewable energy sources.

The Legislature established RETA in 2007 to identify and find financing for renewable energy transmission and storage projects. It has faced criticism for its slow pace even as advocates defend the agency's efforts. It is one of eight such electric authorities in the nation and the only one that focuses on renewable energy.

In 2010, RETA issued $50 million in revenue bonds to support development of the High

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Montana Lake County District Judge McNeil provided a concise set of rulings to the water litigation that has been discussed on this blog and the Federal Eminent Domain blog over the last few months. The issues are serious ones. Judge McNeil had to apply the statutes and consider the tribal agreements and the State Constitution. He thought it out well, helped by some extraordinarily good lawyers.

http://www.flatheadnewsgroup.com/bigforkeagle/news/business_government/article_a35db2cc-8070-11e2-9788-0019bb2963f4.html

McNeil issued his ruling on the irrigators’ petition for injunctive relief on Feb. 15. Noting that the Flathead Joint Board of Control, which would manage water use on the reservation, was created by the state of Montana, McNeil ruled that his court had jurisdiction over that portion of the compact.

He went on to note that water rights in the reservation are held by individual irrigators, not the board, and that state law does not provide the board with the authority to assign water rights privately held by those irrigators.

State law also does not provide the board with the authority to assign the irrigators’ water rights to the Tribes without just compensation, he ruled, or with the authority to require irrigators to assign their water rights to the Tribes as a precondition to joining the Flathead Indian Irrigation Project.

McNeil also noted that state law does not provide the board with the authority to set up a forum for disputes, which would deprive irrigators of their constitutional rights for access to state district courts and state water courts.

The judge also noted that state law does not provide the board with the authority to contractually obligate the irrigators to defend the Tribes’ application for water rights to the Montana Water Court, pointing out that the Tribes’ claim would be in direct conflict with the irrigators’ own water rights.

McNeil also noted that state law does not provide the board with the authority to request that the tax status of the irrigators’ lands be changed so they could be taxed to pay for the numerous irrigation infrastructure projects listed on 17 pages of the draft agreement.

The agreement between the Tribes and the irrigators on the reservation is considered one of three legs that support the overall water rights compact. The purpose of the 1,400-page draft compact is to quantify the Tribes’ water rights, which were established by the federal government with the 1855 Hellgate Treaty.

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After a few years of a bad experience, the Montana legislature is considering rolling back a law which allowed public utilities to purchase private property for public use. The rollback is premised on citizen hostility toward electric transmission actions that have occurred over the past few years in Montana.

The State legislature had already reacted to these private takings in urban atmospheres in consideration of the Kelo determination that each State was required and could make its own decisions.

http://missoulian.com/news/state-and-regional/montana-legislature/montana-senate-backs-eminent-domain-rollback/article_bcdeb396-8056-11e2-9544-001a4bcf887a.html

The law was in response to state court decision that had thrown in doubt the condemnation authority of the Canadian-owned Montana-Alberta Tie Line in north-central Montana. Utilities and other power line developers said the decision upset decades of legal precedent, and that the law merely restored their rights.

Supporters of Barrett’s bill, however, argued Tuesday that the law gave unprecedented power to private companies to run over landowners and should be repealed.

“A private, for-profit, foreign corporation building a power line is not a public use or a public benefit,” said Sen. Mitch Tropila, D-Great Falls. “I’m just passionate about sticking up for the little guy. ... It’s David versus Goliath, and for the umpteenth time, I’m going to be on David’s side.”

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In adjourning the Central Radio Company trial, Norfolk Redevelopment Authority agreed with the respected property owner’s attorney, the renowned Joe Waldo, that the case should be adjourned. An appeal has been filed whether there is a right to take the property from an owner. If the Supreme Court determines there is no authority to take the properties, another jury trial would be a simple waste of time.

http://hamptonroads.com/2013/02/norfolk-companys-eminent-domain-trial-postponed

A high-profile eminent domain trial scheduled to start Monday was postponed indefinitely to await a ruling by the state Supreme Court on a related case.

Joe Waldo, attorney for Central Radio Co. Inc., said the Norfolk Redevelopment and Housing Authority agreed to delay the trial between the two until the state’s highest court can rule on a similar case. The higher court is expected to hear the case later this year.

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Last week, I bid a fond adieu to Jack Briggs, who was noted in mlive.com as an outstanding attorney determined upon retirement.

This week, there is a new article noting Jack Briggs is quoted as explaining why Muskegon lost out on Downtown redevelopment.

However, the comments from readers of the article would lead one to believe that all the Federal government attempts to resurrect the Downtown area were invitations for further failure. How do we make Downtown areas work? The small store has been absolutely decimated by the Walmarts. At the same time, people want to shop on their feet walking. The problem is whether there is transportation to get to the Downtown, and if you drive there, you have to pay to park your car.

Other cities have been able to maintain or redevelop the Downtowns. Bay City and Petoskey are examples.

http://www.mlive.com/news/muskegon/index.ssf/2013/02/from_a_legal_point_of_view_jac.html

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The North Dakota House passage of a utility corridor plan has huge effects for those included in the route. However, the process is one which offers an expeditious and certain route for future utility routes. The proposal is one that has been utilized in other States, such as Texas.

http://www.kfyrtv.com/News_Stories.asp?news=62249

Whether it`s trying to put pipelines in the ground or run electricity from substations, it`s not an easy task. Companies often have the hardest time securing the easements from landowners. While state legislators can`t help with that, they are trying to speed up the permitting process for lines traveling through designated corridors.

Whether it`s a transmission line going above ground, or a pipeline below, the Public Service Commission goes through a lengthy process in approving energy lines throughout the state. But lawmakers are adding their two cents to try and lessen the permit process for already approved corridors.

 

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The unsuccessful appeal by U-Haul in Tennessee is indicative of what occurs in necessity challenges. These challenges, given names such as "summary disposition", "challenge to the public use" or "objections" provide a procedure in which an owner may challenge the right of the government to take. All too frequently, the appeal from a trial court decision is "by leave only" meaning that there is no guarantee of an appeal even being heard.

http://www.johnsoncitypress.com/News/article.php?id=104970

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As one reads the article about Boulder’s municipal plans, the first issue is the validity of the cost benefit analysis. Questions are raised because the facts are uncertain and the results are even less certain. The analysis is well worth reading, not only for the important work done to prepare the analysis, but to raise the ire of one who reviews it.

http://www.bcbr.com/article/20130222/NEWS/130229978

Three of the five hypothetical paths taken by the municipal utility would meet those five requirements from "day one," according to the team. One would be a "phase out" option, under which the city envisions purchasing power from Xcel for five years. It presumes the power would be generated from Xcel's current "mix" of coal, natural gas and renewable energy, which the state requires to be 30 percent of Xcel's supply. After five years, Boulder would be able to get power from other energy providers.

The "low cost" and "low cost, no coal" options also would make the cut. Both options found that a utility could exceed its standards while keeping generation costs as low as possible and still exceed the city's greenhouse-gas emissions reduction goals.

The "low cost" option would draw 25 percent of its power from coal at the start, while the "low cost, no coal" option would not utilize coal at all. The city assumed Xcel will draw 50 percent of its power from coal in 2017.

Utilities that put the priority on reducing greenhouse gases as soon as possible without requirements for low generation costs would not be able to meet the rate-parity requirement, the city found.

A couple major assumptions are behind the city's findings, which the city acknowledges could be subject to change.

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For years, vandalized and vacant buildings have been left simply to rot in the City of Detroit. A privately funded non-profit, The Blight Authority, is seeking to remedy the expensive process involved in public bidding on demolitions.

For all the people who read this blog and have a connection to the City, take a look and please make a contribution. The obligation for Detroit to return to its greatness is upon each of us, whether we live in the City physically or in our hearts or minds.

See:

http://blightauthority.com/

 

 

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The Boneta Bill offers an interesting issue. Should people be able to farm on their own properties and then sell the produce off of their farms directly to the public?

It would seem that it is a taking of the owner’s rights to limit sales. When one notes that the Virginia Farm Bureau and Virginia Association of Counties oppose the process, one wonders whether it simply is not the big boys in the way.

On the other side of the coin is the issue of whether the assured safety and health considerations exist in the small operations.

This is a tough issue.  If there is certainty of safety regulation,the prohibition is like a 'taking' of property rights.  Compensability is another issue.

http://watchdog.org/69599/no-sale-panel-rejects-boneta-bid-to-broaden-right-to-farm-law/

The measure allows for the home-sale of certain food products — including dried fruits and pickles — without inspection by the state Department of Agriculture and Consumer Services.

The items must bear labels listing the name, address and the telephone number of the person preparing the product, along with a disclaimer that the farm or residence has not been inspected by the state.

Sales are limited to $3,000 annually, and cannot be conducted via Internet or off-site retail stores.

Orrick told the Free Lance-Star that the “Pickle Bill,” which withered on the vine at previous legislative sessions, represents a “marked expansion” of the ability of smaller farmers to sell their goods.

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The legislative attempt to limit eminent domain for path and greenway purposes except where adjacent to the roads has again failed.

Owners remain concerned that the government will go willy-nilly for bike paths and horse paths anywhere desired. This is an infringement upon private ownership. Yet, the public uses are just that - public uses.

Bike paths adjacent to roadways do not serve as such a substantial interference with private rights, at least in the minds of some.

The legislation that will limit the installation of the routes has now failed for the third time.

http://www.idahoreporter.com/2013/third-time-not-the-charm-for-legislation-limiting-eminent-domain-takings/

The Senate Local Government and Taxation Committee narrowly defeated a bill proposed by Sen. Jim Guthrie, R-McCammon, that would have placed some limits on government use of eminent domain. While the vote was closer this session, it marked the third time in the past three sessions for defeat of similar legislation.

Senate Bill 1046 said, “Eminent domain not shall not be used to acquire private property: for trails, paths, greenways or other ways for walking, running, hiking, bicycling, or equestrian use,” though there is an exception that reads, “unless adjacent to a highway, road or street.”

One of the supporters of the bill was Sen. Jim Rice, R-Caldwell, who is vice chairman of the committee. “I thought it was a good bill, I voted to send it to the floor with a do pass.”

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The Caldwell, Idaho canal takeover case has again heated up.

The objections to the condemnation offers some very serious questions. The statutory provisions limit condemnation, and also frequently serve as the limitation on any condemnation.

The two lawyers involved in this case are both very sharp. One would suspect that the issues will be dealt with not only at the trial court, but in the State Supreme Court.

http://www.agweekly.com/articles/2013/01/29/news/ag_news/news77.txt

The Idaho Water Users Association (IWUA) today approved a resolution that commits the state's largest water user group to taking all steps necessary to stop and prevent the abuse of governmental power - at the federal, state and local levels of government - in taking existing irrigation and drainage facilities, water rights and storage water from irrigation entities in the State of Idaho through the use of eminent domain. IWUA members have been gathered at their 76th Annual Convention in Boise since Tuesday, with the proceedings concluding today.

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Clearly, McCormick Place is in need of hotel rooms. Just as clearly, some property owners near the area did not intend to redevelop the property for hotel use.

The proposed developer for McCormick Place is seeking to "swap" the necessary property adjacent to the center for a nearby site, thereby allowing the owner retaining the site to continue the property ownership.

Swaps are not always available. This is indeed a fortunate situation for all if it works out.

http://articles.chicagotribune.com/2013-02-19/news/chi-new-1200room-hotel-to-be-announced-near-mccormick-place-20130219_1_mcpier-hotel-rooms-convention-hotel

Though McPier "approached us about an alternative location for this project, we considered those conversations to be very preliminary and no agreement has been reached," McHugh said. "It is our hope that the issue can be resolved in a way that improves the ongoing redevelopment of the South Loop."

Jim Reilly, CEO of McPier, the state-city agency that owns McCormick Place, on Tuesday morning had expressed optimism that the talks would lead to a deal.

"We think that will work out," he said. "If for some reason it doesn't, the city is prepared to use its eminent domain power. But we hope we won't have to do that."

Chicago Deputy Mayor Steve Koch said the project is moving forward.

"We are in active negotiations with McHugh and there are a number of options that will allow both the data center and world-class hotel to be built," he said in a written statement. "However, the city will pursue every available option to ensure that the hotel is built, and brings with it essential redevelopment around McCormick Place."

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In order to acquire, the agency seeking to acquire property must have the delegated authority from the State legislature. This failure has stopped a number of gas and oil pipeline companies from successful condemnation acquisitions. The eminent domain power is one that is only granted through specific legislation.

Colorado transport companies are attempting to modify the statute. If modified, only then will they be able to successfully acquire through the eminent domain process.   

http://www.holyokeenterprise.com/index.php?option=com_content&view=article&id=6754:battle-over-eminent-domain-rights-continues&catid=34:local-news&Itemid=34

 

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When pipeline acts were first passed sixty plus years ago, many States limited the taking to a specified use, such as petroleum or products or exclusively for crude oil.

Now, pipelines are being used for all of the various transportation purposes. The "technical correction" is an important correction if a transporter has a product not provided for in the eminent domain delegation.

This issue is an issue not only in Colorado, but in other States, such as Ohio and Michigan.

 

http://www.holyokeenterprise.com/index.php?option=com_content&view=article&id=6754:battle-over-eminent-domain-rights-continues&catid=34:local-news&Itemid=34

Sponsors of Senate Bill 13-021 claim the bill would merely make a technical correction in state law to add petroleum to the list of the kinds of things that can go through a pipeline.

But the state law that would be changed in the bill currently grants eminent domain rights for pipeline right-of-ways to companies that act in the public interest, such as utilities like natural gas and electricity. The rights of eminent domain have never been granted to oil and petroleum companies. The bill also seeks to overturn a 2012 Colorado Supreme Court decision.  ....

Attorney Ben Cohen, who represents the Larsons, told the Ag Committee that based on his research, oil companies, with “perceived authority of eminent domain,” have for many years obtained land for pipelines through condemnation proceedings. Few landowners, including those in rural areas, have the resources to fight those proceedings, he said. Ivar Larson told the committee that he and his wife borrowed $2 million to cover the legal expenses it would take to fight Sinclair in court.

A second issue is the safety of the pipelines, Cohen told the committee. Neither the state, nor Weld County or the city of Johnstown took any action to set up safety setbacks regarding the Sinclair pipeline, Cohen said. The house nearest the six-inch pipeline is just 25 feet away, despite claims in a Sinclair brochure that they would not put in pipelines any closer than 100 feet away from any home.

According to the Larsons, the Rolling Hills Ranch subdivision, which is adjacent to their property, was built after the six-inch pipeline was installed. The 10-inch pipeline would be about 35 feet from the nearest home in Rolling Hills.

The Larsons intended to develop the land. Cohen told the committee the land cannot be developed because the pipeline should be at least 500 feet from any structure. As a result, Cohen said, Sinclair should pay condemnation damages for the land rendered undevelopable.

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Sugar Hill, New Hampshire is going "ape" over the proposed Northern Pass Transmission Line traversing the community. However, limiting who may speak on the subject is in contravention of the Federal Constitutional provisions, and most, if not all, State Constitutions.

While there are many who are aggressively opposed to environmental interference in local communities, the opposition to the utility activities must be based upon recognized public policy and the recognition that Due Process applies to all.

http://www.thenation.com/article/172266/rebel-towns

But what New Hampshirites fear most is that the Northern Pass will disfigure the state’s visual landscape. “It could destroy our economy,” says Dolly McPhaul, a lifelong Sugar Hill resident. “If people don’t build their second homes here, where are the builders going to get their money? The plumbers? The grocery store that feeds these people?” McPhaul and her neighbors were particularly disheartened to learn that the Northern Pass required federal and state permits—but no local permits at all.

 

“You’re shocked to find out you have no say,” says Nancy Martland, a retired child-development researcher who moved to Sugar Hill in 2007. “Even your whole town. Even at town meeting. Even your Select Board. You have no power. People in New Hampshire—maybe everywhere, I don’t know—we want to stand up for ourselves.”

So they did. Last year, Martland and McPhaul campaigned for a local ordinance that would ban corporations from acquiring land or building structures to support any “unsustainable energy system.” The ordinance stripped those corporations of their free-speech and due-process rights under the Constitution, as well as protections afforded by the Constitution’s commerce and contract clauses. Judicial rulings that recognized corporations as legal “persons” would not be recognized in Sugar Hill. Any state or federal law that tried to interfere with the town’s authority would be invalidated. “Natural communities and ecosystems”—wetlands, streams, rivers, aquifers—would acquire “inalienable and fundamental rights to exist and flourish,” and any resident could enforce the law on their behalf. “All power is inherent in the people,” the measure stated.

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It is not my intent to mislead the reader of this article with the title of this blog. However, there is a flip side to those opposed to opposing fracking on environmental grounds.

Other landowners feel a delay in passing any regulations which would create a basis for legally fracking is, in and of itself, a taking of a property right.

If the State of New York refuses to pass any regulation allowing fracking, and if fracking can be done safely, the State very well may find itself subject to a lengthy and potentially successful challenge.

http://www.theithacajournal.com/article/20130217/NEWS11/302150083/Talk-fracking-lawsuits-ramps-up-New-York-may-skirt-deadline

A soon-to-be-missed deadline for the state Department of Environmental Conservation’s proposed hydrofracking rules has sparked specific talks of a lawsuit on both sides of the contentious debate, with the next few weeks likely to decide which side will sue the state first.

The increasing possibility of litigation highlights the tightrope Gov. Andrew Cuomo’s administration walks as it weighs whether to allow drilling in the Southern Tier, which sits atop the gas-rich Marcellus Shale formation.

A Binghamton-based group of pro-drilling landowners threatened to sue the state earlier this month if the DEC’s Feb. 27 deadline is blown. But the group is re-evaluating its options after DEC Commissioner Joseph Martens signaled Tuesday that even as his agency’s proposed regulations expire, a decision may still come within weeks

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When a transmission line crosses a farm in Minnesota, rather than going through how much the property is damaged, owners can simply require a total taking of the property.

The case is then sent to an arbitration panel to determine value.

In Minnesota, the process does not allow appraisal fees and other costs over a certain limit. Farmers are concerned with the limitation on their rights and are seeking an expansion.   Yet, farmers are rushing to sell the whole farms in order to remove themselves from proximity to the transmission lines.

The "Buy The Farm" process would make it a lot tougher to give increases because farmers would then have the opportunity to require an electric transmission entity to buy the whole of the property. This would make sense in other States as well.

 

http://www.startribune.com/business/190949201.html?refer=y

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The Chamber of Commerce, in its proposal to provide for the purchase of 1,800 acres of a proposed "certified" site has left owners without their Constitutional rights to maintain property but for the Public Use right inherent in sovereignty. This action, if utilized by Jefferson County as has been done in so many other jurisdictions, will cause further friction and hostility to government acquisitions in the name of "economic development".

http://www.memphisdailynews.com/news/2013/feb/13/jefferson-commission-oks-industrial-megasite/

The Chamber of Commerce announced the project last month and it has met with stiff resistance from owners of property in the area of up to 1,800 acres for the proposed certified site.

Charlotte Kenley, who raises cattle with her husband Jack on 400 acres, said they are only stewards of the land, but don't think God intended it as a megasite.

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The underlying notion of allowing eminent domain to be utilized by private entities is that the private entities are regulated. This touches upon whether MATL is regulated by any agency. An interesting issue is raised or whether "merchant" projects are truly acquisitions for a Public Use.

http://www.greatfallstribune.com/article/20130205/NEWS05/302050018/Eminent-domain-sparks-debate

An example of a merchant project is the Montana Alberta Tie Line, a transmission line built to ship electricity from wind farms to market. It’s being constructed between Great Falls and Lethbridge, Alberta, and will create additional shipping capacity for wind farm developers.

“They are not our public utilities,” Barrett said. “They are not regulated by the Public Service Commission.”

It was the MATL project that prompted the debate over eminent domain.

 

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A meeting to acquire owners to acquire as clients was held in Ashe County. A major widening substantially affecting literally hundreds of parcels will occur in the near future.

The attached article implies that there are numerous inverse condemnation cases. Adjacent owners should not get their hopes up because inverse condemnation is not easy to prove.

http://www2.wataugademocrat.com/News/story/US-221-project-poised-for-acquisitions-id-010462

The U.S. 221 project will widen 16.1 miles of two-lane highway to four lanes between Deep Gap and Jefferson. State transportation officials said the project would be implemented in five stages and will be completed sometime after Jan. 1, 2030.

According to the DOT, the widening will displace 70 homes and 33 businesses by condemning these properties in order to gain right-of-ways to make room for the project.

The process of eminent domain, according to U.S. Legal, is when a government entity takes a private land for public use. In this case, the public use is U.S. 221. Hundreds of parcels will also be partially taken, said Duvoisin.

An additional unknown number of properties will be affected through what is known as inverse condemnation.

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The underlying notion allowing eminent domain to be utilized by private entities is that the private entities are regulated. This touches upon whether MATL is regulated by any agency. An interesting issue is raised or whether "merchant" projects are truly acquisitions for a Public Use.

http://www.greatfallstribune.com/article/20130205/NEWS05/302050018/Eminent-domain-sparks-debate

An example of a merchant project is the Montana Alberta Tie Line, a transmission line built to ship electricity from wind farms to market. It’s being constructed between Great Falls and Lethbridge, Alberta, and will create additional shipping capacity for wind farm developers.

“They are not our public utilities,” Barrett said. “They are not regulated by the Public Service Commission.”

It was the MATL project that prompted the debate over eminent domain.

Last session, lawmakers passed House Bill 198, which ensured both public utilities and other developers of pipelines and power lines have the authority to use eminent domain if need be. That bill was passed after a district court judge in Glacier County ruled in 2010 that the MATL developer didn’t have the right to use eminent domain.

Some of the property owners in the path of the MATL line testified in favor of Barrett’s SB 180. The U.S. portion of the project is nearing completion.

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Sometimes communities can better handle water utility issues. When a major upgrade is required, federal funds may not as readily available to private utilities as to the public. However, the Logansport, Indiana dream of acquiring a railroad to "better position businesses in the community" does not meet with reality. Other than the fact that there will be plenty of jobs if the railroad is publicly owned, one cannot imagine why a well-run and regulated entity would have to give up this long-running business.

http://pharostribune.com/local/x964900560/City-authorizes-creation-of-port-authority

“The entire goal of this whole thing is to better position businesses in Logansport that could potentially use rail,” Franklin said.

Franklin referred to the former Toledo Peoria & Western Railway, now owned by Genesee & Wyoming Inc., that goes through the city. He said access and fees would be much more agreeable to businesses using the railway if it was maintained by a port authority.

“Other railroads can get on it and they can pull their cars across it but it has very limited access and is very expensive to get across,” Franklin said. “A port authority would ease that greatly.”

Franklin also said having authority over the Logansport & Eel River Railroad would improve rail access as well, as it ties into the Winamac and Southern Railway and the Norfolk and Southern Railway, which has lines traversing the Midwest and the Eastern Seaboard.

 

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Wyoming, as so many other jurisdictions, has a strong preference for mineral development. There is a clear national public policy supporting domestic production. However, legislators do understand that the entry for seismic testing or other testing may have a detrimental affect on property. As such, the legislature is in the process of at least considering protection of interests that are damaged or taken in this testing process.

http://www.douglas-budget.com/news/article_9d3e3ad2-7077-11e2-889b-0019bb2963f4.html

 

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Posted: Wednesday, February 6, 2013 9:09 am | Updated: 9:12 am, Wed Feb 6, 2013.

Phoenix Rising DAVE ROBATCEK Douglas Budget | 0 comments

Landowners in areas where oil and gas exploration is prevalent got a boost from the Legislature last week when senators revoted and ultimately passed Senate File 136, a bill to strengthen the rules on seismic testing in the oil exploration process. SF136 clarifies and enhances landowner protection by, among other things, requiring the testing company to post a minimum bond to cover surface damages the process may cause. It failed by a narrow margin on its third and final reading, but later was brought up for reconsideration and ultimately passed by three votes.

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North Carolina Representative Chuck McGrady, in again introducing legislation to limit eminent domain actions, faces the same uphill battle. In a reasonable legislative process, frequently one House of the legislature will pass a proposal, with the second House not even looking at the proposal. This has been a constant problem in North Carolina in its numerous legislative attempts to follow the constrains of Kelo and seek limitations on acquisition for the private benefits.

http://www.blueridgenow.com/article/20130204/ARTICLES/130209947

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McGrady introduces eminent domain legislation

Special to the Times-News
 

Published: Monday, February 4, 2013 at 5:21 p.m.

Last Modified: Monday, February 4, 2013 at 5:21 p.m.

N.C. Rep. Chuck McGrady, (R-Henderson), has introduced legislation to amend the state Constitution to limit government's use of its powers of eminent domain. House Bill 8 would specifically prohibit condemnation of private property except for a public use and provide for the payment of just compensation with right of trial by jury in all condemnation cases.

McGrady co-sponsored a similar bill last session that passed the House with bipartisan support, but was never taken up by the Senate. This session, McGrady is the lead sponsor of the legislation and has already begun to work on getting it heard in the Senate after it passes the House.

"I've talked to Senate leadership, including Senator Apodaca (R-Henderson), and I'm expecting that the Senate will take up the bill this session if the House once again passes it with bipartisan support," he said.

McGrady's bill would put the constitutional amendment on the General Election ballot in November 2014.

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Boulder, Colorado, as so many other communities, is looking for "green" electric production.

By simply purchasing the privately managed utility, there is no guaranteed "green" to anyone. The only green will be the additional monies that will have to be paid if the company is not properly managed after the eminent domain proceeding.

The notion of private utilities providing service to local communities is that the utilities are to be properly managed in order to minimize costs, with fair and appropriate regulation by some type of regulatory commission. The notion that just because the city takes over a utility, everything will be spiffy, is simply misplaced.

The reality is that citizens want fairly priced and clean sources of energy to the extent possible. However, to use the notion that clean energy is required and only clean energy controlled by the government is required, thereby necessitating the acquisition of privately-controlled utilities, assures communities in the future that while the expense will be there, the "Green" may not be.

http://www.govtech.com/e-government/Boulder-Colo-Likely-to-Adopt-Its-Own-Green-Utility.html

For the past decade, the people of Boulder, Colo., have pursued an elusive goal: getting more clean energy into their grid. To do so, they pushed and prodded utility company Xcel Energy to give them a say in electricity decisions.....
Under municipalization, cities take over utilities' local electricity operations. They buy the wires, substations and meters, run the electrical grid and select which power plants will supply their power. Most Americans get electricity from mainly fossil fuel-generating plants, usually owned by large utilities. Breaking away theoretically gives cities freedom to add as much clean energy as is technically and financially possible.

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As has been written in this blog a number of times, the imputation of a conflict of interest is often perceived as badly as a conflict.

A person who manages a commission does not have the vote. However, the person may have influence because the person is the manager of a commission.

The best way to avoid the problem is simply not step in the mud. The Caldwell situation is a fiasco.  The article offers additional kindling for the fire.

http://www.capitalpress.com/idaho/CRD-caldwell-allegations-012413

The city also said Pioneer's law firm, "notably now where Semanko is an attorney, stands to lose out on significant revenue if the fee scheme is stopped and the lawsuit ends." And it accused Semanko of coming out with the resolution to "protect the firm's revenue stream."

The "fee scheme" refers to fees paid to Moffatt Thomas for the processing of licensing agreements for obtaining written permission to alter, access, cross, or encroach upon Pioneer's easements or rights-of way.

The resolution opposing water takings by eminent domain came from the resolution committee and was passed by the Water Users members at the association's annual meeting in Boise.

Semanko said he is an employee of the association, taking direction from its board of directors, and doesn't set policy for the organization.

The resolution also asks the city to withdraw its lawsuit and to work cooperatively with Pioneer to resolve the issue.

"It's sad to see a proud city like Caldwell reduced to personal attacks," Semanko said. "We're going to keep focused on the issue. It's too important for Idaho and irrigated agriculture."

The city also accused Scott Campbell, Pioneer's attorney, of unethical conduct that harms Pioneer's patrons and Caldwell residents, citing "the scheme" by which non-negotiable fees were demanded for the processing of licensing agreements.

In 2009, the city and a handful of developers sued Pioneer, Moffatt Thomas and Campbell over those fees paid to "Moffatt Thomas or Campbell."

 

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Montgomery County, Maryland is seeking to obtain a clear transportation corridor. However, the notion that private interests are paying a substantial amount of the bill raises the concern of the private interests being the true beneficiary of the transportation improvement.

As is so frequently espoused in this blog, most courts deem any transportation improvement to be a "Public Use" under the respective State Constitutional provision. However, these private engagements which propagate the eminent domain proceeding are bothersome and painful.

http://northpotomac.patch.com/articles/county-executive-seeks-use-of-eminent-domain-for-century-boulevard-extension

County Executive Seeks Use of Eminent Domain for Century Boulevard Extension

The Montgomery County Council will decide Tuesday whether the county executive can take the land

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http://florida.newszap.com/okeechobeenorthlake/119601-113/luna-family-continues-to-fight-sfwmd-in-court-over-land

The Luna family, represented by outstanding Florida lawyer, John W. Little, III, is challenging acquisition in which a reasonable legal description acquiring only what was needed simply had never been made.

Almost every jurisdiction contemplates that eminent domain is for needed purposes only. The underlying proposition to this is that a proper analysis of what is needed be concluded as part of a legal description preparation. Mr. Little is targeting what is being taken and what should be taken in an appropriate fashion; a challenge to the right to take.

When he was queried by attorney John W. Little III, who represents Montoya Ranch, Patrick Luna and Glendoria Sutton, Mr. Shaffer also admitted when asked that the district is taking 7 more acres than is needed.

It was also brought up that the legal description of the property had been altered in that a line was added to the legal that not only put in an access easement, but increased the acreage that would be taken in fee.

Rick Barnes, SFWMD sectional administrator for the mapping and surveying section, told Mr. Artau that he contracted with a private surveying firm—Cooner and Associates of Fort Myers—to survey the tracts to be taken. He also testified straightening the boundary lines is a common practice. And, in the case of the property in question, straightening the boundary lines didn’t change the configuration of the tracts or the acreage.

Then, under cross examination, he also admitted that the surveyor did not do a boundary survey of the property.

Mr. Wright told Judge Metzger that surveyors used “surveying techniques” instead of actually doing a survey.
 

Continue Reading...

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The notion of the "clear zone", barring construction and clearing all vegetation can offer an absolute disaster for the property owner involved. The notion that a "vegetation management easement" is simple minor effect often does not meet with the reality of the situation.

An airport’s acquisition of a vegetation easement means that the property owner will have a "clear cut" or flat land parcel after the easement is acquired. This is not a simple "easement" but rather a destruction of a valuable property right.

Sussex County is making exactly the same mistakes as those made in Lenawee County, Michigan.

http://capegazette.villagesoup.com/p/sussex-set-to-condemn-land-near-airport/956431

County Assistant Attorney David Rutt said the county wants less than five acres of the parcel and has offered $37,000 in total for an easement on about half of the property and for out-right purchase of the other half.

Fraipont wants the county to purchase the entire parcel including her house – which is an offer, she said, county officials had previously made – not just the wooded acres. She said the county had her entire parcel appraised at $800,000, which is lower than her appraisal. “It's not that unfair, but would need to be negotiated up a little,” she said. “I just want what I have now, and what was promised to me since day one.”

She's convinced she would never be able to sell her house – where she has lived since 1989 – if the property were divided and the woods clear cut. “This house is my future and my main asset for my retirement,” she said. She says she couldn't rebuild her house for less than $1 million.

Rutt said the county does not need the entire parcel. “We have no other use for the rest of the property, and to purchase it would be a waste of taxpayer's money,” Rutt said. “We've filed for condemnation and immediate possession based on the value of our appraisals.”

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Rather than arriving at a final and reasonable resolution, Northern Will County apparently believes that it may push forward in the acquisition of the American Lake Water Company utility.

Hopefully, the citizens of the County understand their water rates will go up no matter who owns the utility.

http://www.mysuburbanlife.com/2013/02/01/northern-will-county-water-agency-files-lawsuit-in-bid-to-takeover-pipeline/aiq4jnc/

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http://www.nytimes.com/2013/01/28/opinion/property-rights-case.html

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 thought out response.

Each is worth reading.

There is nothing “radical” about the Koontz family’s argument to the Supreme Court that government can’t impose unrelated, unjustified burdens on people seeking land-use permits.

When the Koontzes sought a development permit for a few acres in Orange County, Fla., they were told that they must finance extensive wetlands mitigation on government land — costing up to $150,000. As the lower state courts recognized, the price exceeded any environmental impact from the Koontzes’ proposed land use. So, under United States Supreme Court precedents against extortionate demands on permit applicants, it amounted to a “taking.”

However, the Florida Supreme Court sided with the government, holding that the Fifth Amendment’s anti-extortion rule prohibits only outrageous exactions of land, not money.

The Koontzes are asking the United States Supreme Court to reject this arbitrary distinction and affirm that a shakedown is a shakedown, no matter what currency it comes in.

The Koontzes aren’t challenging the government’s authority to ask for mitigation — only the misuse of mitigation as cover for confiscation.

PAUL J. BEARD II
Sacramento, Jan. 20, 2013

The writer, an attorney with Pacific Legal Foundation, represents Coy Koontz Jr., the petitioner in Koontz v. St. Johns River Water Management District.

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The Bloomberg article of "Land Battles Rise" is one of the most comprehensive articles covering issues related to pipeline and electric transmission corridor condemnations. It is to be closely read.

One item the article may miss is the fact that the "common carrier" exclusion, allowing private entities to acquire, contemplates regulation of the private entities. At some point, utilities will find that they are to be regulated, limiting the revenues of the utilities.

http://www.bloomberg.com/news/2013-02-04/land-battles-rise-as-u-s-eyes-450-000-miles-of-new-pipe.html

Shifting Power

States have tried to shift the balance of power in landowners’ favor after the 2005 U.S. Supreme Court decision known as Kelo v. the City of New London. The court decided 5- to-4 that the Connecticut city had a right to seize private property for a hotel, condos and offices.

More than 40 states have enacted laws limiting or prohibiting property seizures for economic development since the Kelo decision. The states have been slower to act on the issue of using eminent domain for energy projects on private property. Since 2011, at least 13 states have drafted some form of legislation dealing with the subject, often taking different approaches, according to research from the Denver-based National Conference of State Legislatures.

While Montana was granting MATL eminent domain rights, Wyoming, after a landowner backlash, put wind companies’ rights to seize property on hold. Oklahoma in 2011 outlawed eminent domain in developing wind farms on private property.

The Montana senate is scheduled to hold a hearing this week on a bill that would end eminent domain for private power lines like MATL.

Merchant power line projects aren’t “beneficial to the public good of Montana,” state senator Debby Barrett, a Republican who sponsored the bill, said in an interview.

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As Hanover Township contemplates the acquisition of a 1798 building, one has to wonder what the Township officials are thinking.

The best utilization of the building is as an historical site complementing a development project. Shame on the community leaders for not thinking about how the property can best be utilized.

 

http://www.dailyrecord.com/article/20130128/NJNEWS/301280051/Town-may-condemn-office-buildings

HANOVER — A 214-year-old Whippany Road building is one of two the town is considering condemning and tearing down to accommodate new development......

He said he may have to enter into negotiations because “it’s too hard and expensive for the little guy to fight a big company and government. You’ve got to know when to hold them, and know when to fold them.”

The redevelopment comes after the township Planning Board commissioned a traffic study in the area, which led to a land-use study and circulation study. The goal is to cut down on traffic while still bringing new business to the area.

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In order to facilitate the MATL power line, Nevada allowed electric company eminent domain actions on unauthorized routes.

Now that MATL has completed the project, some maintain the statute should be modified. The chance of repeal is unlikely given the strong opposition to repeal by other utility companies.

Read more: http://billingsgazette.com/news/state-and-regional/montana/new-fight-brewing-over-eminent-domain/article_13295f67-b2e9-5935-9fe3-276028893399.html#ixzz2Jf8pjQNe

The debate over eminent domain reprises the legislative battle from 2011, when the Legislature went down to its last week before narrowly approving a law stating that utilities and power-line developers can use eminent domain to condemn private property along an approved route.

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A State Senator is seeking reform to the eminent domain process in Nebraska.

The consternation with the Keystone Pipeline has created a stream of grievances. Whether any substantive change will occur is something that will be years, rather than months, in the making. If the pipeline had avoided the aquifer originally, this would not have been an issue.

 

Nebraska Senator Pushing For Landowner Protections In Eminent Domain Bill

http://wnax.com/Nebraska-Senator-Pushing-For-Landowner-Protections/15398027

 

 

Increased landowner protections are the goal of a measure up Wednesday before the Nebraska State Senate Judiciary Committee. 

Senator Annette Dubas sponsor of L.B. 152 says her legislation requires any entity using eminent domain to have all permits in place including a present plan and public purpose for using that land.

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Last week, this blog complained about an article in the Journal Gazette being totally unbalanced and unfair.

This time around, the Journal Gazette offered a more balanced commentary. However, the assumption that one side is demanding way too much and the other side is offering way too little is not necessarily accurate. Why not wait until a resolution is reached?

One positive thing is that Tim Pape and Mark GiaQuinta are counsel for the respective sides. This bodes well for some type of effort to try to resolve the issues. Both are great lawyers. The notion of allowing Aqua Indiana to continue with the sewers would be a benefit for not only the company, but also the community.

http://www.journalgazette.net/article/20130127/EDIT0502/301279972/1021/EDIT

In preparing for a City Council vote, the Henry administration hired former Democratic City Councilman Tim Pape, an attorney, to help with strategy. Aqua Indiana has former councilman and attorney Mark GiaQuinta in its corner.

Just about the only thing city residents and Aqua Indiana customers can be sure of is that both sides are jockeying to get the best price, and much of what they are hearing is aimed toward gaining an edge in negotiating.

Aqua Indiana says its water utility is worth $60 million if it’s worth a dime, and the company hints there is no way the city can buy it without raising rates for all water customers. That’s already gotten the attention of Councilman Glynn Hines, who represents some of the city’s poorest neighborhoods in the southeast part of the city and wants more or a less a guarantee that rate hikes won’t happen......

Even though Aqua Indiana said last week that a deal is close, the city demurred.

 

Still, it’s a good sign that last week’s presentations by the two sides before City Council were called off.

It’s hard to negotiate in good faith after each side bashes the other in public, which was nearly certain to happen. And besides, we could all use a break from the saber rattling.

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The Washington Post, like the New York Times, is an active supporter of eminent domain for purposes of economic development.

The Post cries about $28,000,000 being spent to buy the Skyland Shopping Center land for redevelopment. What did it expect? Fair-market value is sometimes a requirement, even for the District of Columbia.

http://www.washingtonpost.com/business/capitalbusiness/2013/01/25/5734a7c6-665c-11e2-85f5-a8a9228e55e7_story.html

Located at the intersection of Good Hope Road, Naylor Road and Alabama Avenue in Southeast, Skyland is one of the only places in the area to pick up a prescription or grab a bite to eat. But its lackluster offerings have pushed the city government to extraordinary lengths to upgrade it.

According to a tally by the attorney general’s office, D.C. has issued $28 million in payments to get the original businesses on the site — among them a liquor store, a discount mart and a beauty supply store — to leave.

To remove business owners that did not want to sell, the city used eminent domain to force them out, leading to a dozen court cases beginning in 2005. This cost the city more than another $1 million in outside legal expenses and the use of more than 10,000 city attorney hours.

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In Michigan and many other jurisdictions, Courts have ruled that because roads are a public use, even if the road is for the benefit of few or even one, once a properly delegated governmental agency determines that a road should be built, public use requirement will be fulfilled. The road is a "public use". See Township of Grosse Ile v Grosse Ile Bridge Company, 722 NW2d 220 (2006).

Even though roads can always be built by a community, the governmental body often refrains from acquiring for fear of opposition by the citizens.

An example of this opposition is the conflict in Marquette, Michigan. Many citizens object to heavy haul trucks traveling through the City of Marquette, yet others object to a new roadway bypassing the City for fear of the loss of aesthetic attractiveness of the surrounding areas.

The reality is that Marquette County and the surrounding Counties will have substantial economic development, and the mining company will be able to fully utilize the mineral asset; thereby aiding the tax base and employment in the central Upper Peninsula area.

 

Continue Reading...

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It is difficult to imagine has the same appraiser can value a property at $10,000,000 at one point and then arrive at $2,000,000 thereafter. This office has experienced this in an Ohio condemnation, but rarely does a community use the same appraiser to lower its offer. Frequently, communities hire a second appraiser who determines a lower Just Compensation than the prior appraiser, but rarely do governmental agencies utilize the same appraiser to diminish the value.

 

http://www.unioncityreporter.com/view/full_story/21458920/article-Legal-fees-and-politics-Council-votes-on-Doyle-for-empty-seat--but-doesn%E2%80%99t-seat-him-?instance=home_Most_popular
 

The second contract also elicited commotion, for another reason. The $35,000 contract to hire attorney Edward Buzak was for a land use lawsuit involving a stretch of land known as “block 12.” The city has worked to acquire block 12 for the creation of a southwest Hoboken park.

This piece of private property was allegedly appraised for $10 million at one point and then $2 million at another point by the same appraiser. Now the city is trying to acquire it through eminent domain for $2 million from the private owner. A member of the public, David Liebler, called this “fraud.” He specifically blamed Mayor Zimmer.

“What you are doing is practically fraud,” said Liebler. “The use of eminent domain for something like a park, I have no words. Mayor Zimmer did not even sit down and try to negotiate. You can’t have the same appraiser go from $10 million to $2 million. That’s like me going to your house and saying it’s worth $500,000 and then $300,000.”

Members of the council argued about how an appraisal works for a situation like this. Councilwoman Jen Giattino said, “Appraisals are not set one way. There are many different ways that a property can be appraised.”

 

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http://www.nytimes.com/2013/01/20/opinion/sunday/where-is-the-taking.html?_r=0

Over the last few decades, a divided Supreme Court has extended property rights at the expense of community interests by expanding the “takings” concept to include regulatory actions that are “functionally equivalent” to direct appropriation. These might include actions that render the property essentially worthless, undermine an owner’s right to keep it private, or greatly limit its use.

In Koontz v. St. Johns River Water Management District, however, the plaintiffs have asked for a radical redefinition of takings so elastic that even Justice Antonin Scalia, a strong advocate of property rights and of a broad interpretation of the takings law, rose up in protest.

The New York Times, an avid supporter of eminent domain as a "Public Use" (including eminent domain for economic development) came close in a recent opinion.

In attacking the Koontz argument, the New York Times properly recognizes the importance of water resource protection. At the same time, the Times misses the recognized standards of taking in stating that a "divided" Supreme Court has "extended" property rights at the expense of the community interest. To the contrary, the right to own property or to lose it only after payment of Just Compensation for Public Use has been something that has existed in our Constitution and applied to the United States government since 1790's and the States since 1865 with the passage of the 14^th Amendment.

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Wyoming state senators expect to approve a measure extending a moratorium which limits the use of eminent domain for wind-energy producers. Utility companies may acquire property through eminent domain in order to provide alternative energy sources, but the private wind developers will be barred for a few more years under the provisions.

http://www.wyomingbusinessreport.com/article.asp?id=64465

The Senate is expected to take up a measure extending a moratorium on allowing wind-energy producers to condemn property for facilities to collect and transport electricity. House Bill 40 would extend the moratorium on the use of eminent domain to 2015. The House already passed the bill last week.

Public utilities are and would remain exempt from the moratorium. Wind-industry supporters say that is unfair and the law plays a role in stifling wind energy development in Wyoming.

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When a pipeline is transporting gas in the Eagle Ford Shale area, it provides for an expensive and profitable venture affecting owners in the path of the pipeline.

 

When the community desires to extend its water pipelines on the same route, the dangers of water and the effect on the property of water simply does not provide the same dangers as the shale pipeline.

http://www.kztv10.com/news/council-approves-pursuing-eminent-domain-for-pipeline-land/

The city says those land owners are now asking for the same price for a pipeline that carries not oil, but water. The city can't pay those high prices and says if landowners won't negotiate more reasonable prices they will be forced to get the land another way.

"If we're not able to do that than we do reserve the right to employ eminent domain," said Assistant City Manager Oscar Martinez.

That is the power the city has to take private property without the owners permission for the good of the public. The city would then pay a market price value, which they believe to be much lower than what Eagle Ford Shale paid.

 

 

 

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The Journal Gazette has notified the Fort Wayne City Council to forget about the "procedural minutiae".

Should the City Council take the newspaper’s advice, the City Council will never successfully be able to acquire the property. What the newspaper calls "minutiae" is the legislative determination that property owners should receive a Due Process offer. The process specifically sets forth the terms by which a condemnation may occur.

Should the City Council follow up on the newspaper "legal advice", the City Council may find that it will never own the water utility!

http://www.journalgazette.net/article/20130120/EDIT07/301209973/1147/EDIT07

In the meantime, the Fort Wayne City Council should not get bogged down by procedural minutiae and should move decisively to begin condemnation proceedings against the privately held utility.

Representatives from both City Utilities and Aqua Indiana will press their case to City Council members at a public hearing on the condemnation ordinance on Tuesday. One issue of potential dispute that council members will need to grapple with is the condemnation procedure.

State law governing eminent domain, which changed recently, requires government entities seeking condemnation to determine there is a public necessity, complete an appraisal of the assets, make a final good-faith offer and then condemn the utility.

Advisers to the city believe the law allows the city to vote on the necessity of the takeover and vote for the condemnation at one time.

 

Aqua Indiana and its supporters on the council will push for the council to vote soon on the public necessity declaration but to wait for a condemnation vote later.

But City Utilities leaders are right to move forward with the condemnation as well.

Delaying a second vote will only result in mounting costs and would have no practical advantages.

 

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One looks for balance on newspaper articles. However, when the article simply states that the owner is going to get stuck with the government’s offer, the writer simply has not garnered all the information one would expect. Maybe the government’s offer is right. Yet, it may not be. The Lathrop, California acquisition may not be quite as simple as the writer would have you believe.

http://www.mantecabulletin.com/section/1/article/63201/

On Monday the council voted unanimously to take the first step in condemning the property, starting the legal process that could very well end up with the property owner walking away with the $575,000 that the city initially offered after an appraisal late last year. 

The 6.15-acre parcel – which is zoned neighborhood commercial is completely barren – is slated to be a major part of the pending project. According to City Engineer Mary Grace Houlihan, the largest portion of the property will house part of the road while the rest will be set aside for the back slope and a major storm retention basin that will handle the water runoff for the new frontage road.

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Questions are raised of whether the power of taxation is a valid power. The 16^th Amendment resolves the issue for Federal income taxes; allowing the Federal Government to tax income in order to maintain fiscal stability. However, when it comes to taxes, one has to wonder whether the taxes, or a procedure, can be so onerous that it affects itself of "a" taking. The City of Detroit is but one example. The City has a taxation system in which only the title holder of real property receives the tax bill. When property is sold on land contract, there is no compulsion on the land contract purchasers to pay other than the purchasers will be forfeited out by the tax process.

The underlying problem is that the tax assessments, (which are allegedly based on value) often has no relationship to the value in the market. The 2008 housing crises created specially negative affects in a community where mortgage markets are no longer available. Detroit is among the prime examples in the country.

 

Continue Reading...

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Questions are raised of whether the power of taxation is a valid power. The 16^th Amendment resolves the issue for Federal income taxes; allowing the Federal Government to tax income in order to maintain fiscal stability. However, when it comes to taxes, one has to wonder whether the taxes, or a procedure, can be so onerous that it affects itself of "a" taking. The City of Detroit is but one example. The City has a taxation system in which only the title holder of real property receives the tax bill. When property is sold on land contract, there is no compulsion on the land contract purchasers to pay other than the purchasers will be forfeited out by the tax process.

The underlying problem is that the tax assessments, (which are allegedly based on value) often has no relationship to the value in the market. The 2008 housing crises created specially negative affects in a community where mortgage markets are no longer available. Detroit is among the prime examples in the country.

 

Continue Reading...

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A proposed Texas bill would allow for the purchase of land acquired by eminent domain.

A number of jurisdictions have a process in which an owner is entitled to the return of condemned property if a different use than the public use is made of the property within a specified number of years.

http://www.law360.com/articles/406977/texas-bill-would-expand-buyback-right-after-eminent-domain

A Texas lawmaker on Monday proposed a series of landowner-friendly changes to the state’s eminent domain laws that would make it easier for property owners to buy back land after it was condemned and require more disclosure about progress on planned public projects.

In HB 476, Rep. Lois Kolkhorst, R-Brenham, would require the condemner, whether a government entity or private company with eminent domain power, to identify the planned public use for the land, and then allow the former property owner to repurchase the land if....

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The Chicago area fight is a microcosm of what is occurring throughout the country. Communities are ascertaining whether they can purchase local private water systems and whether they can fight the big city water bureaucracy. This fight has existed in Detroit, Washington and a number of other cities as well as Chicago.

 

The underlying problem is that while there is no private motive, one might believe that lack of a profit does not mean that the costs are necessarily lower. The reality is that both private and public water systems can have plenty of "fat"; "fat" which is difficult to excise.

 

http://www.wlsam.com/common/page.php?pt=Water+wars%3A+Projects+grow%2C+ideas+flow+as+cost+of+water+rises&id=8371&is_corp=0

 

 

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The Ohio Farm Bureau provided a release to the Tribune Chronicle on what the organization does for the State of Ohio.

The importance of farm bureaus involvement in eminent domain legislation is paramount. Wherever the local farm bureaus become involved in the eminent domain process, property rights are protected. The best examples are Virginia and Michigan. The Ohio Farm Bureau is attempting to do the same in its jurisdiction and should be congratulated.

 

http://www.tribune-chronicle.com/page/content.detail/id/581578/Farm-Bureau-money-saving-programs.html?nav=5005

Issues such as eminent domain, private property rights and state tax reform are being lobbied for farmers all across the country. Successful legislative efforts have directly benefited the farming community with financial savings on items such as Current Agriculture Use Valuation, tax adjustments and rollbacks from property taxes, truck licenses, sales tax exemptions, tangible personal property tax savings and gasoline tax exemptions. For a 200-acre farm, these savings equate to more than $5,000 per year, so the membership investment of just more than $63 per year is indeed a great deal.

 

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The importance of farm bureaus involvement in eminent domain legislation is paramount. Wherever the local farm bureaus become involved in the eminent domain process, property rights are protected. The best examples are Virginia and Michigan. The Ohio Farm Bureau is attempting to do the same in its jurisdiction and should be congratulated.

 

 

http://www.tribune-chronicle.com/page/content.detail/id/581578/Farm-Bureau-money-saving-programs.html?nav=5005

 

Issues such as eminent domain, private property rights and state tax reform are being lobbied for farmers all across the country. Successful legislative efforts have directly benefited the farming community with financial savings on items such as Current Agriculture Use Valuation, tax adjustments and rollbacks from property taxes, truck licenses, sales tax exemptions, tangible personal property tax savings and gasoline tax exemptions. For a 200-acre farm, these savings equate to more than $5,000 per year, so the membership investment of just more than $63 per year is indeed a great deal.

 

 

The Ohio Farm Bureau provided a release to the Tribune Chronicle on what the organization does for the State of Ohio.

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The Ohio Power Siting Board will be holding hearings on a proposed 60 mile high voltage utility line on January 23. The line will have important consequences for those around the route. Those who are near the line propose a different route.

http://www.springfieldnewssun.com/news/news/local/hearings-to-be-held-on-60-mile-power-line/nTm7f/

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What is an opinion editorial article in OpEdNews speaks of the "very truth" of the Keystone Pipeline.

http://www.opednews.com/articles/Buried-Truth-Uncovering-T-by-Brett-Redmayne-Tit-130106-989.html

 

Steve Da Silva is a leading member of the environmental group, Nacstop.org, who has been following TransCanada in its corporate quest for KXL since the beginning, more than four years ago. The group's web-site is likely the most thorough available on the subject and also serves as an archive of information on KXL. For the Nacstop group, and many KXL watchers, the issue of where this pipe has been manufactured has been eagerly sought from TransCanada, which refuses to reveal this information. Some said, "China," or Europe, possibly Canada. Few believed the pipe was really of US origin. They were right.

"India!" says Da Silva. "Welspun Steel. I've got the documents". Thanks to persistence, and a nose for the truth, Steve, a "retired educator," obtained the Environmental Impact Statement (EIS) for KXL from the Army Corps of Engineers, who provided federal review. The origin of the pipe is listed as, "Welspun Steel Ltd. India." Why TransCanada re-labeled twenty acres of Indian made pipe, stacked five pieces high, "Made In USA," just prior to burying it below the ground, remains unknown.

Since, TransCanada wants someone to believe that the pipe is made in the USA as stenciled, they must also expect credibility for the pressure test results, also printed on each piece. Along with some other unknown numbers the pipe is also clearly marked, "Tested 1910 PSI."   TransCanada's own public documents state the tar sands, once converted to dilbit (see Part One), will be pushed through the pipe at 2200 PSI. Is this problem not simple math?

 

The reality is that America is in desperate need of North American resource development. As such, pipelines will be required. However, the question raised in the article denying the job creation argument is open to question. Yet, the notion that all of the equipment must be American built and project safety are serious and substantial questions.

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In setting up the public hearings requiring a response after holding pro-government hearings to acquire a portion of Aqua Indiana, Fort Wayne is setting up Aqua Indiana for a Star Chamber proceeding. However, numerous meetings ahead of time is an invitation for people to be revved up and angry without regard to whether the utility properly can service the community. This is a tough way for a utility invested in the community to fairly have the opportunity to respond. Is this process really required?

 

 

http://www.fwbusiness.com/business/latest/businessweekly/article_48ab180a-5aa1-11e2-80da-001a4bcf6878.html

The Indiana Utility Regulatory Commission is requiring Aqua Indiana to improve its system in the event of another drought that could create what the commission deems an unacceptable fire protection risk because of the possibility of inadequate water pressure.

On Nov. 30, the IURC released the second phase of an audit evaluating the utility’s ability to meet challenges it faces serving southwest Fort Wayne residents during a drought.

City of Fort Wayne officials said the audit findings support a decision to move forward with the condemnation process. But the company believes it can make other arrangements with the city that would render condemnation unnecessary.

About 70 percent of Aqua Indiana’s 12,000 southwest Fort Wayne customers live within city limits, and Henry has said he is committed to helping them solve the water challenges they face.

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http://www.chronicletimes.com/story/1926464.html

Jeff Gust, MidAmerican Energy vice president of compliance and standards, explained why these high voltage grid expansion projects are necessary and how they evolved.

 

Gust said, "This project is a culmination of a lot of work by our company, other regional utilities and MISO. MISO allows transactions of energy on this grid.

 

"This project provides multiple benefits and that's why we call it MVPs. The benefits include allowing more renewable energy to be interconnected onto the grid, primarily wind. Also, it allows for the system to be more reliable. We want to harden the grid to allow for contingencies to happen. There are times when the system gets bottlenecked with a lot of energy that needs to get transferred to a specific point. This will allow for that and that will help reduce costs for our customers and the region."

 

The MISO, short for Midwest Independent System Operator, has expressed its belief of how electric line expansion will help communities.

What is not stated is that MISO is an organization funded by the utilities, through a delegation from FERC, which allows utilities to claim right to an eminent domain delegation. One has to question whether MISO has an appropriate delegation to lay claim to the right.

What MISO does is look at areas for renewable energy, with electric lines creating a diminution rather than increase in values.

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http://www.chronicletimes.com/story/1926464.html

Jeff Gust, MidAmerican Energy vice president of compliance and standards, explained why these high voltage grid expansion projects are necessary and how they evolved.

 

Gust said, "This project is a culmination of a lot of work by our company, other regional utilities and MISO. MISO allows transactions of energy on this grid.

 

"This project provides multiple benefits and that's why we call it MVPs. The benefits include allowing more renewable energy to be interconnected onto the grid, primarily wind. Also, it allows for the system to be more reliable. We want to harden the grid to allow for contingencies to happen. There are times when the system gets bottlenecked with a lot of energy that needs to get transferred to a specific point. This will allow for that and that will help reduce costs for our customers and the region."

 

The MISO, short for Midwest Independent System Operator, has expressed its belief of how electric line expansion will help communities.

What is not stated is that MISO is an organization funded by the utilities, through a delegation from FERC, which allows utilities to claim right to an eminent domain delegation. One has to question whether MISO has an appropriate delegation to lay claim to the right.

What MISO does is look at areas for renewable energy, with electric lines creating a diminution rather than increase in values.

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The Illinois Commerce Commission may grant the Block Rock Island Clean Line a route through the low density farming area. The question is whether the railroad right of way should be followed, thereby saving substantial productive land. The argument that the railroad right of way is the correct route is one that will likely be raised at both the State Commission hearing and at a later court proceeding.

http://qctimes.com/news/opinion/mailbag/group-opposes-power-line-project/article_8009725a-4800-11e2-8fa1-001a4bcf887a.html

I’m a landowner who will lose farm ground to access roads and 200-foot-tall towers with footprints of at least 28 square feet. RICL wants 200-foot-wide easements across my business forever. If RICL gets the Illinois Commerce Commission to grant them public utility status, they will then be able to apply for eminent domain, meaning they would seize part of my farming business for “the good of the public.” In the meantime, a taxpaying businessman that helps feed the world would lose his property. Part of my land would be unusable for food production forever, and surrounding farmable land would be impacted by soil compaction, weed issues, drainage, GPS and aerial spraying disruption. My land’s value would depreciate, affecting the tax base. Furthermore, I would be liable for the towers and disruption of electricity if damaged, making them uninsurable. Would you want to have that liability forced on you or have your private property seized?

 

 

The Illinois Commerce Commission may grant the Block Rock Island Clean Line a route through the low density farming area. The question is whether the railroad right of way should be followed, thereby saving substantial productive land. The argument that the railroad right of way is the correct route is one that will likely be raised at both the State Commission hearing and at a later court proceeding.

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The Center for American Progress is presenting what it deems will be a "spirited" conversation about the utilization of eminent domain for underwater mortgages. The session is to be held on January 8, 2013, from 12:00 to 1:30 p.m.

Eminent Domain as a Means to Reduce Principal

January 8, 2013, 12:00pm - 1:30pm

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About This Event

The housing crisis wiped out nearly $7 trillion in homeowner equity and caused a wave of foreclosures that have crippled the nation’s housing market for nearly four years. While the housing sector appears to be on the road to recovery, the comeback is slow, and many communities are still struggling. CoreLogic estimates that more than 10 million homeowners are still underwater, which portends more defaults, foreclosures, and the possibility of derailing the recovery.

This event examines recent calls for municipalities to use eminent domain to restructure underwater mortgages. Please join us for what’s sure to be a spirited conversation.

Featured speakers:
Representative Brad Miller, (D-NC)
Jim Carr, Senior Policy Fellow, Opportunity Agenda
Tom Deutsch, Executive Director, American Securization Forum
Steven Gluckstern, Chairman, Mortgage Resolution Partners

Moderated by:
Julia Gordon, Director, Housing Finance & Policy, Center for American Progress

A light lunch will be served at 11:30 a.m.

RSVP

RSVP for this event →

Location

Center for American Progress
1333 H St. NW, 10th Floor
Washington, DC20005

Map & Directions
 

Nearest Metro: Blue/Orange Line to McPherson Square or Red Line to Metro Center

 

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"If the credit expires, it will drive the cost up when we go for a power purchase agreement," Becker said. "We may say, 'Is this an opportunity for us to do our own construction - can we build it cheaper?'"

According to Beiermann, there is no mandate in Nebraska that requires utilities to use an increased amount of wind energy. However, the NPPD Board of Directors has voluntarily set a goal of having 10 percent of its electricity come from renewable energy resources by 2020.

"There is a strong push by regulators and the general public as well for clean energy resources," Beiermann said. "Nebraska reportedly has the third best wind energy resources in the nation, so there's a lot of interest in wind for export."...

Private developers do not have the right to eminent domain, but NPPD does. Beiermann said the utility doesn't currently have any condemnation on wind sites and stressed that it tries its best to work with landowners before that point is reached.

 

http://lexch.com/news/regional/decisions-about-nebraska-wind-development-dependent-on-tax-credit/article_f19d7b72-4f90-11e2-a391-0019bb2963f4.html

 

At this time, a 2.2 cent kilowatt-hour tax credit is provided to wind energy companies. This is a major incentive for private wind development.

If the tax credit is lost, wind development will become far more expensive.

As noted in the attached article, under such a circumstance in which this tax credit is lost, we can easily foresee utilities entering wind turbine development process. This is because of many States having a mandated requirement that non-fossil fuel energy sources be a specific percent of total electric production.

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http://www.appeal-democrat.com/news/property-122093-land-owners.html

The notion that simply because one uses land which is State owned for a long enough time will create adverse possession is not necessarily true. Each State has its own statutes and Court decision, frequently finding that the State is the owner even though it exercises no possessory right to property. For years it would be otherwise barred by the adverse possession statute. Each State follows its own process, so one must closely view how adverse possession against the governmental agency is treated in the owner’s respective State.

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Claremont officials have been at odds with the San Dimas-based water company for some time after it asked the Public Utilities Commission to approve a rate increase of more than 24 percent for 2013 and additional increases in 2014 and 2015.

A negotiated settlement resulted in Claremont's 11,000 customers and ratepayers receiving a 15.1 percent rate increase in 2013, 2 percent more in 2014 and 1.8 percent in 2015.

In November, Claremont officials sent an initial offer of more than $54 million to purchase the company's local assets but Golden State officials have said no.

On Dec. 18, Golden State released a feasibility study by a water expert it paid for that said the water company's local assets could cost as much as $204 million.

City officials issued a news release two days later stating the water company "hires lobbyists and consultants to mislead residents."

http://www.dailybulletin.com/ci_22277910/claremont-groups-take-sides-local-water-dispute

The public relation groups on each side enter into the question of valuation. Clearly, a water company complains that the government agency offers a quarter of the value of the property. This is not a surprise as government offers can be, although not always, egregiously low. However, this notion of each side having their own public relations outfit intervening does not frequently happen. This will give rise to a long and brutal dispute for all.

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 The notion that the new International Bridge Crossing will take seven years to complete (with an explanation of even when acquisitions will occur) presents interesting questions.

Are PR agents already out there, telling people that it will be year two when their properties will be acquired?

Will owners have a longer time to move businesses or homes should the time be required for their business or institutional survival?

http://www.freep.com/article/20121225/BUSINESS06/312250117/New-bridge-over-Detroit-River-to-Windsor-could-take-7-years-to-complete

Don't expect much actual construction in Year 1, although crews may begin to relocate utilities at the construction site. Authorities will begin to buy the property needed for the bridge approaches and customs plazas. Preliminary design survey work begins.

Year 2: Authorities will complete land acquisition for the span. Utility relocation continues. Design work for the service drives, ramps, etc. continues. Some early construction may begin if all the necessary right-of-way parcels are acquired.

Year 3: There's lots of work on the approaches in Year 3, including both design work and some construction.

 

 

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In the Dec. 9 article "Corbett Makes Promise, Sans Specifics, on Transit," Gov. Tom Corbett mentioned that there was a state law passed last year "allowing for public-private partnerships to pay for infrastructure projects." I assume that this will allow private corporations to charge a fee to use this private infrastructure, including bridges, roads and highways.

The governor favors privatization of the state liquor stores without guarantees that private companies will earn the state $500 million, as was the case this past year.

The governor has given the gas industry easy access to gas extraction. Every other state has a tax on extraction while we have a minimal fee at each drilling site. Additionally, those in North Huntingdon and Penn Township in Westmoreland County have learned that a company may have the right of eminent domain to install its lines.

http://www.post-gazette.com/stories/ae/art-architecture/state-for-sale-665955/?print=1

In a letter to the Editor in the Pittsburgh Post Gazette, a writer notes that Governor Corbett has approved legislation allowing public private partnerships to pay for infrastucture. Also noted is the opportunity to acquire land for the transport of extracted minerals.

The decisions to create infrastructure at this point seem to be premised upon private public partnerships given the dearth of funds available to communities. Mineral extraction provides a clear public policy that domestic production must be maximized. So long as that is our public policy, one can readily foresee continued eminent domain delegations to private utilities. The question will then be one of fairness and responsible action by those having the power of eminent domain.

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One only need read the posting on a 20-year case that affirmed that a taking requires just compensation. The Maguire Oil Company and Houston have been at it for 20 years, with the owner finally receiving just compensation on its inverse condemnation claim.

 

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Many of the issues listed in the 2013 state legislative agenda are marked as priorities items. These include annexation. Commissioners oppose any change to state law that would limit the authority of cities to grow through annexation.

When it comes to eminent domain, commissioners are asking for increased flexibility to use it for economic development purposes, including blight remediation, without having to obtain approval from the state Legislature.

http://www.leavenworthtimes.com/article/20121127/NEWS/121129547

The Commissioners of Leavenworth, Kansas are determined to allow eminent domain proceedings to continue for economic development. This runs contrary to the trend of other governmental units throughout the country. In State after State, legislators or the electorate has limited eminent domain actions for economic gain. Leavenworth seems to be going in precisely the opposite direction.

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It's official. Nine city councilors have signed onto an order on the agenda for Tuesday night's council meeting calling for the city manager to conduct a feasibility study into possibly taking the Wyman-Gordon property on Madison Street and around Kelley Square by eminent domain. Worcester Mag first reported on Thursday that councilors were working to put together the order, with a City Council source saying it was meant as a "shot across the bow" of Wyman-Gordon amidst reports that a well-known developer is eying the property for a possible hotel and slot casino.

"It is a strategic site for the city of Worcester," Mayor Joe Petty says. "There is potential for development on this site, which has been vacant for years."

http://www.worcestermag.com/blogs/dailyworcesteria/NEW-Order-calls-for-exploring-eminent-domain-taking-183574121.html

On the one hand, we do not want communities’ involvement in the private affairs of individuals. This is well illustrated by the anti-Kelo activities moving forward in State after State. At the same time, when it comes to casinos and other gambling developments, communities desire to exercise their police power and strictly control the real estate activity.

 

By filing what it calls a "shot across the bow", the Worcester City councilors are attempting to control development in the community.

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Without question, the construction of a Warren County, Ohio racino will dramatically affect traffic in the area. As described by outstanding Southern Ohio eminent domain attorney, Richard Glazer, the market is already vibrant, and the traffic is already substantial. Reconstruction or reconfiguration of the road for only the racino will be devastating to nearby businesses and the Hospital.  

 

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The airport is marketing itself as an “executive alternative airport,” based in part on its status as an FAA-designated general aviation reliever airport for Richmond International Airport. The county hopes to capitalize further on that status by persuading a developer to build a hotel at the Route 288 interchange in the near future.

Much of the facility’s economic impact, however, has been due to the adjacent Airport Industrial Park. John Thayer, a member of the advisory board and a retired Air Force officer, suggested that the airport offers the county an opportunity to lure aviation-related industries. Other localities currently aren’t doing much to serve those companies, he said.

If approved, the master plan will require the county to acquire some additional land from neighboring property owners, either through negotiated purchases or, if necessary, via eminent domain.

The neighbors include two churches: New Jerusalem Church on Cogbill Road, which may have to modify some of its architectural plans, and Fair Haven Baptist Church, which would have to relocate.

http://www.chesterfieldobserver.com/news/2012-12-12/News/County_seeks_input_on_plan_to_lengthen_airport_run.html

The Chesterfield County, Virginia Airport Board’s plan to expand an airport is not as simple as one may think. Adding 800 feet to a runway not only affects the property owners within the 800 feet, but also will create havoc with others who will be losing their air rights, either voluntarily or by eminent domain.

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By offering a small percentage of the value of a property, Hyattsville now finds the actions result in a harsh newspaper article. However, if one looks at this article, a reader will find that the comments of the local citizens are even harsher towards the City’s actions than the article. 

HyattsvillePatch

"By putting us in this position, it is costing us." said Guevara.

Michael Herman, lawyer for Samuel and Guevara, said that the city's initial offer was far lower than what other surrounding properties have gone for in recent years.

"If you look at land transfers that have occurred in the last few years, some of the parcels in the EYA project have gone for approximately $4 million per acre," said Herman in an interview. "The city was offering my client one third the value of their land."

The sentiment is similar for the owner of 4508 Hamilton Street, Richard Loesberg, and his tenant, Harold Alfred, who has operated an auto body and paint shop on the property since 1977.

Loesberg, whose family has owned the property since 1979, said that the city has not offered a fair market value for the land. According to court documents, the city offered to pay $540,000 for the property.

"We're inexperienced in commercial real estate transactions," said Loesberg, who works for a food distributor. "We kind of thought the city did it's homework…but we started asking around and learned that nearby properties had gone for three times as much."

 

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The City of Fort Morgan is negotiating with owners adjacent to the airport through a “publication information” blitz.

It is amazing how an official states he is “confident” the negotiations will result in a purchase. Of course, the Colorado State statutes require a negotiation prior to the filing of a condemnation complaint. This was not noted by the Fort Morgan bureaucrat.

The best thing the government can do in an eminent domain proceeding is not talk in a public fashion about what it is doing or how successful it will be because the talk is a public relations win and a fairness to property owners loss. 

FortMorganTimes.com

The city has been negotiating with the airport neighbors for months, and the council authorized Fort Morgan City Manager and Attorney Jeff Wells to take all actions necessary to move forward with the airport project.

In a memo to the council, Wells said his staff is confident that negotiations will result in the purchase of the needed properties, but the city needs access to the lands to do things like surveying and geotechnical work.

The ordinance says that the city has determined that it should acquire the property by negotiation, if possible, or the use of the power of eminent domain. To ensure timely possession of the lands, it may be necessary to initiate condemnation proceedings, as authorized by the state and city charter.

 

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Blog Host Alan T. Ackerman is interviewed on NPR and discusses utility condemnations including Enbridge Energy’s replacement of pipeline which ruptured in Michigan causing extensive environmental damage as well as electric transmission takings by ITC Transmission Company and Marathon Oil.

michiganradio.org podcast part 1 

michiganradio.org podcast part 2

michiganradio.org podcast part 3

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Tulsa does not have enough experience on how to deal with an expressway condemnation. However, having the proposed Gilcrease Expressway being built with no time line on when it is to be built makes absolutely no sense. A process which states that a public use is anything the government wants to do that is public does not fulfill the expectations of a population that expects the government only to acquire property when it really needs it. Here, owners in Tulsa, Oklahoma will have no idea when the expressway will be built so the final plans can be made to take into consideration the proximity to the new road. This is the kind of situation in which I am surprised the owners do not have a competent eminent domain lawyer like Bob Nichol speaking on their behalf.

NewsOn6.com

"Now, I've got a driveway that's like this. It's like a ski slope," Barrett said. "The driveway failed. It started sinking, because they didn't pack the dirt right."

"There was some cracking. It's my understanding all of that has been fixed, and if there is new cracking—yes, we'll fix it," Som de Cerff said.

All of the construction on the roads around Mackey and Barrett's property is complete for now.

The city said they're still waiting on money to finish the Gilcrease Expressway. There's no timeline on when that money will come in.

 

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The owner of the physical train station in Bloomfield, New Jersey desires to redevelop the property. Yet, after almost fifty years of ownership, little has been done. On the one hand, we want to respect private property. On the other hand, people should not have to arrive at a blighted train station. Who is at fault cannot be determined by the article. Yet, it would seem apparent that redevelopment of the station in the immediate future is now a necessity. 

Baristanet

Haberman had hoped to develop the property rather than sell it. In July, Haberman’s company, Bloomfield Daval Corporation, received notice that the Township had initiated condemnation through eminent domain.

“After many years of making significant contributions to Bloomfield’s downtown, I am deeply disappointed that the Township of Bloomfield has chosen to condemn our company’s Block 220 train station property rather than work with us to develop a first class restaurant, retail and office complex consistent with my father’s vision,” Haberman said at the time.

His father, Allen R Haberman, a developer in Essex County, formed Daval in 1964 to acquire Bloomfield’s westbound train station. The station was built in 1912 and is on the National and State Historic Registers.

 

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The Myersville citizens have objected to a proposed natural gas compressor station in a central portion of the community.

Communities have few opportunities to expand. Sometimes, communities do not want to expand. However, to bar expansion by placing a compressor station in an area which is clearly a centerpiece of the community serves to diminish the intent of reasonably supplying natural gas within the country.

The utility also intends to expand either the storage or the storage and buffer area. The valuation offers are deficient, but that issue will have to be dealt with by a jury for those who decide that they should be paid the full just compensation for their respective properties. 

Attached is a well thought out response on behalf of the Myersville citizens by attorney Carolyn Elefant.

FERC Docket No. CP12-72

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ITC is now moving forward to prepare its offers in Sanilac County, Michigan. As part of this process, ITC is utilizing a statute which allows the condemning authority to request documents from owners.

This process is intended to provide ITC with as much information as possible. Given past experience with ITC offers, it is unlikely that all of the issues will be covered, but at least ITC is making some effort to ascertain the range of acreage rental rates.

In the Thumb, rental rates widely vary, dependent upon the relationship between landlords and individual farmers and historic relationships that otherwise exist. 

 

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In a strongly written letter to the Watertown Daily Times, a local property owner explained why he viewed the State siting of windmill turbines as a form of eminent domain.

The real problem with eminent domain is when owners suffer because the community, rather than the individual property owners, makes the final determination of turbine siting on the individual owner’s property. 

Watertown Daily Times

An overwhelming majority of residents here in the towns of Lyme, Cape Vincent, Clayton and Hammond have come out against 500-foot high industrial wind turbines that would dominate the area for miles around. We now have laws on the books that will protect residents from these huge and noisy wind turbines. The question is will Article X rule over the laws of the towns and take away the people’s rights to their private property? Placing a few hundred huge wind turbines throughout these towns is a foreign wind company’s form of eminent domain.

Wind turbine noise can reach out hundreds of yards from the generator invading the surrounding private property and thus take away from property owners’ use of their own land. Because of the inconsistent nature of wind, a turbine is very inefficient. The Wolfe Island project generates at 17 percent to 24 percent and Maple Ridge is a little higher at 24 percent to 27 percent. This is very poor considering traditional generators generate electricity at 95 percent to 99 percent.

 

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Pennsylvania now follows the rule of so many States. When a case is dismissed, the governmental agency wrongfully bringing the case is charged with payment for the owner’s attorney fees and costs. Most States now have statutory provisions requiring a reimbursement and others provide for a direct payment procedure. 

thetimes-tribune.com

The reasonableness of Mr. Hughes' bills "were essentially uncontested" by the SRA, and Mr. Hughes' hours expended and rates were reasonable, the judge ruled.

Mr. Hughes said in a phone interview, "I'm pleased for the Stadolnys and Piccolinos in retaining me to fight the SRA on this, which was important. I'm glad for the ruling."

Mr. Hughes, who was a former SRA solicitor, said he knew right away the condemnation was amiss, because the redevelopment plan had not been amended, the pizzeria was not vacant and the effort appeared to be an improper "spot condemnation." He said the SRA probably could have negotiated a deal with his clients that would have avoided the lengthy condemnation battle.

Friday's ruling against the SRA means the failed condemnation now has cost the SRA some $278,000 in legal fees for attorneys on both sides, according to public records from the agency and the court.

That's because SRA attorney Carl Greco billed the SRA some $159,000 from 2006 through September for his legal work in connection with the condemnation of the two properties, and of that had been paid $157,000 through August, according to bills he submitted to the SRA that were obtained by The Times-Tribune through a Right-to-Know request for public records.

 

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Unlike almost every other State, Georgia has no procedure in which State authorization for a power line is sought prior to the installation of the power line. This offers a serious constitutional issue. The legislation to at least place disagreements over placement of power lines through an arbitration process would offer such an alternative. However, many public service commissions do not deal with the precise location of the power lines, but rather allow transmission companies to simply provide notice to owners that the owners may be in the route.

Daily Report

The bill would give the PSC new powers to arbitrate and rule on any dispute arising between a local government and any company owned or controlled by an EMC that exercises eminent domain.

It also would require the power utilities to submit their right of way or easement plans for public and private lands to local governments and provide for arbitration by the PSC to resolve any conflicts.

The bill was tabled in committee this past spring, but Holt told the Daily Report that he intends to reintroduce it in the coming legislative session.

Holt said Georgia is "one of a handful of states that doesn't have some kind of oversight" over the power utilities' exercise of eminent domain.

Under current law, Georgia landowners whose private property is condemned for the construction of power lines and power stations have no place to appeal, he said.

 

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As with so many other communities, Fort Wayne has determined that it is better suited to run a water system than a privately controlled organization. The underlying fight about water seems to surround either the price increases or the failure to supply areas of a community. In Fort Wayne, service seems to be the issue.

Indiana's News Center

After the city submits its ordinance to city council and if approved, the city will then make its final “good faith” offer to buy the utility. Aqua Indiana will have 30 days to respond to the offer, according to City Utilities Program Manager Ted Nitza. If Aqua declines the offer or refuses to provide an answer, the city will then file a condemnation complaint in court. Nitza says Aqua is running out of options.

“I think the best case scenario is that Aqua Indiana would recognize that this is a problem that they can't solve, that they've had their opportunity to bring in their management, their engineering, their attempts at fixing the issues that they were presented with when they took over operations quite some time ago. City Utilities is well equipped with the engineers, the scientists, the managers. We have equipment, the facilities, the capacity to better serve the customers in the Aboite area.”

 

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The United Hunter Oil & Gas Corp. placed a PR notice that it has filed an inverse condemnation against San Luis Obispo, California.

Limitations of use under the police powers reserved by the States are meant to be for police powers; not for the edification of the citizens to better enjoy their County. However, safety concerns may provide a valid defense to an inverse condemnation claim. The United Hunter Oil & Gas Corp. lawsuit shall be interesting to watch as it proceeds.

marketwatch.com

The County, by and through its Planning Commission and Board of Supervisors, abused its discretion when it denied the Excelaron Project. Specifically, the County failed to proceed in the manner prescribed by its own laws and ordinances when it applied new and unwritten standards to the Project, when it interpreted its laws and ordinances in a way that precluded approval of the Project, and when it refused to consider any Project alternatives pursuant to CEQA.

 

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Rock Island has long been intending to redevelop an area where a dilapidated shopping center existed. Finally, it is getting to the point of completing the project and moving forward to acquire those properties which have not voluntarily sold.

The owners in the area have long suffered by the City’s past activity in the area.

qctimes.com

Wal-Mart, city officials said, would change that. “It’s going to bring back a major retailer to a shopping center that’s been on the decline for a while. I think it’s great news for Rock Island,” Pauley said.

Jeffery Eder, the city’s community and economic development director, said there will be two outlots in the redeveloped area that can contain other retailers. He said he didn’t know the size of the Walmart to be built, but the chain’s supercenters are at least 125,000 square feet, he said, though its preferred size is 192,000 square feet. No Wal-Mart official spoke at the city council meeting.

Documents related to the line of credit said about 23 acres are being assembled as part of the project. Eder said the line of credit is akin to a construction loan, but that tax increment finance bonds would later be floated to finance the deal.

 

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Our ever-expanding metropolitan areas have created a myriad of problems. One of the problems is that the water flow patterns may drastically change. When this occurs, irrigation districts (farms) may be substantially interfered with. In acquiring the irrigation district the City fails to recognize what it is doing to harm agricultural activities. 

Idaho Press

The city’s eminent domain lawsuit will be filed as soon as possible, Clark said.

In its 2008 lawsuit filed against the city, Pioneer claims Caldwell residential areas illegally drain storm water into Pioneer’s facilities, a use the lawsuit argues will eventually cause flooding or public health problems or both. The city argues the storm water discharges are allowed by long-standing state law. Trial in the case is set for June.

 

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In a Virginia Cavalier Daily article, the author recognizes the push-back to the inappropriate utilization of eminent domain that has been ongoing throughout the country. We now have 40 states curtailing the power of eminent domain, something that the Supreme Court must have contemplated with Kelo. The exercise of eminent domain pursuant to the authority granted to the states can be limited by the citizens of the states! 

Cavalier Daily

But there was a push-back afterwards. To this day, over 40 states have curtailed the power of eminent domain, to some degree or other. And it was the Supreme Court’s opinion in Kelo v. City of New London, penned by Justice Stevens, that left the door wide open for such opposition when he stated “nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings of power.” Furthermore, he wrote that discussion of when and if to use eminent domain was a matter of “legitimate public debate.”

Del. Bell and Attorney General Cuccinelli did the right thing in taking these words to heart. Bell’s bill has been fighting for a chance to be ratified by voters, and on November 6, all of the hard work paid off. Despite the Republican origins of the bill, voters of Virginia — now a blue state — came out swinging for the amendment, indicating a bipartisan motivation to check the powers of government, at least when it comes to protecting private property.

 

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Each State has its own rules on acquisition of property in order to benefit an adjacent owner. This raises a question of highest and best use and whether consideration can be given to what is being taken by eminent domain in lieu of a market transaction. The owners have an interesting claim, and the condemnor should be leery, given the present Virginia environment illustrated by the enactment of a Constitutional amendment. 

Tyler Star News

The .063 acre of land is wanted in order to construct the Bens Run Industrial Park Access Road which would provide a second entry into the park.

Eric Peters, executive director of the Tyler County Development Authority, said the issues with the current road, "Not all of the available sites within the industrial park are efficiently accessed by the existing road. Constructing side roads from the existing road to access additional acreage would not be efficient land use management, as it would use far too much rare flat land for roads instead of productive business operation. Also, in order to access the southern half of the park from the existing road would require constructing rail crossings over the Tyler County Development Authority's rail spur within the park. This would be more costly and disruptive than building a separate access road."

 

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The Penn Live editorial page offers a simplistic answer to a complex question. In Pennsylvania, the Public Utility Commission authorizes pipeline companies to become public utilities. With the “Certificate of Public Convenience”, pipeline companies have the authority to acquire by condemnation.

The eminent domain power is a harsh remedy. Providing the eminent domain power to pipeline companies is frustrating because the main purpose of the pipeline company is to move oil through the State or from a mineral source within the State out of State. In either event, the pennlive.com article probably has it wrong.

Eminent domain probably is required to assure the pipeline companies the opportunity to move the crude oil around. On the one hand, the process is offensive in good times. On the other hand, our Nation needs the prompt delivery and the substantial resource available from minerals within our nation.

Inevitably, the pipeline companies will win out. The questions are, how do owners obtain fair payment and how does the State obtain reasonable fees for allowing the eminent domain to proceed.

When legislation grants pipeline companies eminent domain power, it can provide specific caveats as to how much is to be paid to the owners, be it at a foot basis, percent of total property value basis or any other reasonable basis. However, the present “just compensation” theories simply do not make the owners whole!

pennlive.com

At the moment, pipeline companies can apply to the Pennsylvania Public Utility Commission to become public utilities. That means more regulation and oversight for the pipeline company, but it also gives the company the much coveted “certificate of public convenience,” another way of saying eminent domain.

Two companies — Peregrine Keystone Gas Pipeline and Pentex Pipeline — have cases before the PUC to become public utilities. While these companies argue that they are now ready and willing to provide utilities to the public, it’s clear that a major part of their motivation to be a public utility is to gain eminent domain rights. Both companies have plans to construct pipelines in the Marcellus Shale region.

This is a regulatory mess. If Pennsylvania continues down this route, some Marcellus pipeline companies are likely to get public utility status and some won’t.

This provision for pipeline companies was created for those that deliver gas directly to the public. Marcellus pipeline firms that carry gas from wells to refineries are very different.

 

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The Philadelphia Redevelopment Authority is considering acquiring, even by eminent domain, properties in the rapidly developing Point Breeze neighborhood. The intent of the community is to provide affordable housing in the area.

An owner has objected to acquisitions, maintaining that the area does not need public redevelopment. This is always a tough question. Affordable housing is a key component achieved most frequently through city participation. On the other hand, Point Breeze is developing without the activity. This poses a very difficult choice. 

philly.com

Feibush said he had refused to identify which pieces of land belong to him or to people he is representing because he does not trust City Council. That makes it impossible for city officials to consider whether to take those properties off the list. Feibush wants them to kill the whole bill.

Ed Covington, PRA executive director, said it was necessary to include some of the private parcels.

He cited a set of several parcels where one piece of privately owned land was sandwiched between city-owned properties.

"It would be inefficient not to complete that assembly," Covington said. "It creates the right kind of development because it would be continuous as opposed to broken."

 

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A governmental agency frequently must cross its township, city or county lines in order to complete the installation of necessary public uses.

Acquiring for public use is not all that the law requires. Specific statutory authorization to acquire out of the community limits frequently is a prerequisite to most State Constitutional framework. However, once properly legislated, communities will generally have an opportunity to condemn outside the geographic boundary of the governmental unit.

wataugademocrat.com

Municipalities have statutory authority to condemn property, known as the power of “eminent domain,” for public purposes such as a public water supply. Municipalities must compensate owners of condemned property according to fair market value.

Tommy Odom of Charlotte-based The Odom Firm, which has expertise in condemnation and eminent domain, said that condemnation might require an inter-local agreement between the town of Boone and Watauga County.

At Riverside, Poe wondered out loud if the town of Boone was trying to “force our hand” in Ashe County with a threat of condemnation of the Cooper farm. Jordan said he had been frustrated with his inability to obtain clear information about the project from the town.

“You don’t get the benefit of the doubt when you’re showing bad faith,” he said. Jordan said he would ask the research staff at the General Assembly to provide more information about condemnation.

 

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The article from the Watauga, Tennessee Democrat covers an interesting issue.

In this situation, an appraiser, identifying himself as a specialist in condemnation, identifying himself as “Larry” showed up at a farm to say that he was appraising the installation of a proposed water intake facility.

Most jurisdictions allow appraisers to enter property prior to a condemnation, but require appropriate and fair notice to the owners. The statute lacks a basic element of fairness to owners, or the appraiser simply did not follow the statute. 

wataugademocrat.com

Cooper and his brother Donnie own a farm — listed on the National Register of Historic Places — near a 10-acre tract the town of Boone purchased in 2009 from Larry Cooper, Randy Cooper and Amy Cooper Greer, who are relatives of Ronnie and Donnie.

On Monday, an appraiser named Larry contacted Ronnie Cooper, stating he had been hired by the town of Boone and that “he specialized in condemnation,” Ronnie Cooper said. The appraiser said the town wants to build an access road across his property to Brownwood Road, Cooper said.

 

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The author of a Casper, Wyoming Tribune article misses the issue. Wind energy companies do not have the power to acquire via eminent domain. Somehow, the writer confuses the law of supply and demand with the notion that simply providing the wind power companies with the eminent domain tool will “balance” the market. To the contrary, supply and demand factors are what is required to fulfill an optimization of the market. To simply state that legislation granting the condemnation power to wind companies balances “supply and demand” totally contradicts the notion that there is to be a free market in our economy.

In Michigan, wind turbine companies have been paying as much as $24,000 per year annual rent for one turbine location. Others have obtained wind turbine land leases for as low as $10,000, as an annual rent for turbine leases. In these situations, it is the market that makes the decision, not the notion that compulsory acquisition via eminent domain is somehow available. 

trib.com

But wind companies have been unable to use eminent domain for projects since 2010, when lawmakers passed the moratorium. They extended it in 2011, with an expiration date coming next summer...

But wind companies haven’t had an option. Some in the industry think companies wouldn’t have used eminent domain anyway, because of a weak wind market, but that’s not what matters here.

By telling wind producers interested in Wyoming projects they can’t use a tactic that can be a major negotiating weapon for companies in other sectors, the state is indirectly influencing the market at best and shaping it at worst.

 

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Fairfax County Board of Supervisors Chairman Sharon Bulova arrived at the ultimate defense against the Virginia eminent domain provisions. Supervisor Bulova complains that if there are public events, and individual shopkeepers are damaged, then perhaps they should finally get paid for all the damage done.

If the government provides activities for public benefit and use, why should this activity serve as a bar for just compensation?

Supervisor Bulova has put the cart, being the public good, before the horse that is to pull it. Payment to people specifically damaged provides the horse power, otherwise nothing will be left in our society because of complete government control. 

connectionnewspapers.com

Bulova said business-owners could construe the amendment as “taking away or diminishing” their profits when streets are closed and their shops are shut down during popular parades and festivals, such as Viva Vienna or the City of Fairfax Fall Festival, events that attract up to 40,000 people during one weekend.

“These are community-building events, and we’re concerned the language in the amendment can be read by individuals as way to seek compensation for lost profits,” Bulova said.

“A shop owner could complain they lost revenue, that festival vendors are taking their business away,” Bulova added. “What if someone decided to make that an issue and seek compensation for lost profits under [the amendment]? The Town of Vienna can’t afford to reimburse every shop owner...”

 

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A recent Free Press article quoted Governor Snyder as stating that “shovels will be in the ground on the Bridge in two to six months.” This is reasonable. The project has been affecting this neighborhood for ten years.

All we are doing now is waiting for the U.S. Presidential Permit approval. Then, finally, we can move forward. 

freep.com

The actual NITC schedule, developed in coordination between Michigan and Canadian officials, envisions a seven-year process from the time the U.S. Presidential Permit is approved, something that officials hope to get within a few months.

 

 

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The Ambassador Bridge ownership will continue to fight what has turned out to be The People’s Choice. Over sixty percent of the vote on Proposal Six supported a publically owned and built bridge.

The Detroit News noted the involvement of Roy Norton, the Canadian Consul General to Detroit.

If you did not hear Mr. Norton speak in the last year, you missed something. He made an outstanding presentation of why the Crossing was needed and where it should be constructed. Canada chose its Detroit representative wisely. 

detroitnews.com

"We are happy with the investment made in this campaign on behalf of taxpayers and the 5,000 families employed by Ambassador Bridge family of companies," Blashfield said. "Like any family business, we would do it again — and will in different ways — to defend economic freedom and limited government."

Snyder accused Moroun of trying to protect his "monopoly" on commercial truck traffic at the border through ownership of the Ambassador Bridge, while Moroun's Detroit International Bridge Co. has said the first-term Republican governor is trying to put it out of business and made the ballot issue a referendum on the "governor's bridge."

On the campaign trail, Snyder got help from Roy Norton, the Canadian Consul General to Detroit, who repeated refuted the Moroun campaign's claims.

"We saw it as self-serving, opportunistic and cynical," Norton said of Moroun's campaign.

 

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In a lawsuit between the owner and Kernersville, North Carolina, the community has effectively “non-zoned” rather than downzoned the property. The whole notion of freezing an owner’s right to use the property within the law is simply a violation of Due Process.  

bizjournals.com

Joyce Development Corp. filed the lawsuit this summer after the town voted in June to move forward with condemnation proceedings for the 2.5-acre parcel on N.C. 66 owned by the entity. The town voted to condemn the Joyce Development property after efforts to reach a sale price for the land were unsuccessful.

The lawsuit alleges that the town is seeking to condemn the property for the private benefit of developers looking to build in the area that would be served by the road. The town had put restrictions on the development of 160 acres between the Novant Health-owned hospital and N.C. 66 that prohibit development until Kernersville Medical Parkway is completed.

 

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The Navajo County Board of Supervisors dealt with a very common and thorny issue. When railroads do not create the employment a community believes should be created by the railroad, or when the railroad offers an interesting alternative use, such as a walking path, should the community acquire the railroad property? Realistically, taking the property for a “quick fix” sounds great. However, the reality of the situation is that the community is taking a central piece of infrastructure. The infrastructure may provide a long-term benefit to the community. The act of eminent domain may be devastating in the same way that the national deficit will create havoc for our grandchildren. There may be times in which the condemnation is so clearly necessary that a community must acquire the railroad property, but that is rare indeed.  

azjournal.com

“Catalyst is a private business that has the right to do what they’re doing,” said Hatch. “It’s important for businesses to do what’s best for them. As a businessman, I find it challenging when government entities get involved to handcuff businesses from doing what they need to do.
“I don’t see where the county has the funds to even entertain the idea of purchasing it,” said Hatch. “We need to do everything we can to attract business, but to not get directly involved in trying to become a business.”

He spoke on behalf of private property owners and their rights.
“It’s a private railroad, to benefit those within the area, to provide jobs if the market allows it,” said Hatch. “We should not force the market.

 

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NiSource’s plans to drill oil and gas in the Utica Shale formation of northeast Ohio and western Pennsylvania offers an interesting conundrum.

Leases were signed. People are obligated to follow their contracts. Yet, leases that are 40 years old do not relate to the same economic conditions as leases presently being entered into. However, parties enter agreements premised upon enforcement.

The problem with the leases seeking mineral reserves in a strata which could never have been drilled 30 years ago does not modify the terms of the lease itself. Unless it can be illustrated that the strata was not intended to be included in the original lease, fee owners will have great difficulty and probably should not be able to modify the leases. This is the reason that when people give up their property rights, whether for gas storage, mineral extraction or utility easements, the property interest lost is truly lost forever. 

shalegasreporter.com

According to NiSource, conditions of each lease would be the same as when they were signed, or amended, if any amendments were included.

“Residents will receive royalty payments per the terms of their lease, which vary among the landowners,” said Chevalier Mayes, communications manager for NiSource. “Any given lease may contain different terms from other leases as the result of negotiations that took place at the time of grant, or as a result of later amendments.”

Property owners with current leases through Columbia Gas have expressed concern, the past couple years, that their leases could be outdated and “inadequate” for the modern drilling practices, which involve hydraulic fracturing and at a much deeper depth, for a resource that was unavailable when leases were signed.

Many of the existing leases date back 40 or more years.

 

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Thomas Keen a candidate for Indiana’s 16th District Senate seat claims that his opponent made a terrible mistake in making it more costly for acquisition of a private utility company property.

The private water utility is just that; a private utility, franchised by the State of Indiana. To make it more difficult to acquire “is no sin.” Private property rights need to be protected, all premised upon the original grant of a franchise to the water utility! 

INCNOW

Keen says his Republican opponent, incumbent senator and Indiana Senate President Pro Tem David Long, voted in favor of a 2009 bill that made it more costly for the city to pursue eminent domain by preventing the city from recouping expenses from impacted residents through higher fees.

He says, if elected, he would like to repeal that law. He says he would also like to implement new legislation aimed at the Indiana Utility Regulatory Commission (IURC).

 

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Two legislators argued against the Virginia Property Rights Amendment.

As for their claim that lost profits and lost access compensability is provided in the Constitutional Referenda, the legislators fail to note that the same lost profits would be available to a Virginia business whose lease agreement is breached even before the business opens.

Finally, because little else sells in the arguments, the two State Legislators scream “wolf” in the form of “taxes”. Where is there a law which states that we should not pay taxes for the payment of just compensation when just compensation is owed?

washingtonpost.com

In 2007, the Virginia General Assembly did exactly that, enacting legislation that prohibited the state and local governments from doing what New London did. Today in Virginia, state and municipal officials cannot condemn property unless it is ultimately owned by the government, a utility or a public service corporation...

Third, the addition of “lost profits” and “lost access” as condemnation damages is unfair because it gives businesses more rights than people. Two identical houses could be sitting right next to each other, but if one has a business in it and the other is a home, the homeowner would be compensated only for the value of the property while the business owner would get that plus more — even if an improved road made the business vastly more profitable.

 

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Two legislators wrote about the Property Rights Amendment in Virginia, claiming that a partial resolution was legislated in 2007 which protected owners from private takings.

First, the legislation did not fulfill all of the needs for protection of property owners. Second, what the legislature gives, the legislature can take away.

Then, the legislators went on to note that the Virginia Constitutional Amendment is somewhat similar to the Fifth Amendment.

There is always an assumption that legislation could provide more rights to owners than otherwise would be available via the Constitution. This same assumption should also recognize that on the State level, police powers may be limited by referenda. 

washingtonpost.com

In 2007, the Virginia General Assembly did exactly that, enacting legislation that prohibited the state and local governments from doing what New London did. Today in Virginia, state and municipal officials cannot condemn property unless it is ultimately owned by the government, a utility or a public service corporation...

Third, the addition of “lost profits” and “lost access” as condemnation damages is unfair because it gives businesses more rights than people. Two identical houses could be sitting right next to each other, but if one has a business in it and the other is a home, the homeowner would be compensated only for the value of the property while the business owner would get that plus more — even if an improved road made the business vastly more profitable.

 

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One of the most important things a farmer should be concerned about is where the transmission poles are to be placed. Concerns about interference with tile and the cultivation patterns are important issues. Simply being paid without consideration to the pole placement does not take care of long-term damages.

When a farmer meets with a utility company seeking infrastructure locations on the farmer’s property, the farmer should always be accompanied by his lawyer. This is of key import to proper representation of the owner in order for the owner to be properly treated. 

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Rock Island Clean Line has applied for public utility status. The landowners are concerned that this will offer Clean Line the opportunity to acquire the right of way via eminent domain.

Amazingly, a Clean Line Energy Partners director claimed that eminent domain has nothing to do with the processing of its application.

Are you kidding? 

morrisdailyherald.com

The Rock Island Clean Line Wednesday officially applied with the state for pubic utility status, but local land owners in its path fear the company will get the power of eminent domain to take their property despite their wishes.

But Hans Detweiler, Clean Line Energy Partners director of development, says it is required to get public utility status to move forward with its project, not because it wants to forcefully take people's property.

 

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