Intermodal Facility Expansion in Massachusetts

Telegram

As a result, Maurice O'Connell, vice president of government affairs for CSX, said today the company wants to expand its current freight facility in Worcester by another 28 acres, boosting it to 51 acres.

To accomplish the expansion, Mr. O'Connell said CSX is looking to assemble 11 parcels of privately-owned commercial properties near the existing freight yard, as well as acquiring portions of public streets, he said.

He emphasized there will be no land takings through eminent domain and that the parcels will be acquired through privately negotiated sales.

    
The Telegram article leads one to believe that the intermodal can simply expand.  It represents eminent domain will not occur.  Is it right to be skeptical that the expansion can occur simply by voluntary purchases?  The eleven commercial businesses want to be in business and probably desire to remain where they are.  To simply say, “we will not condemn”, while recognizing that condemnation may be required is not a fair way for eminent domain to be handled.
    
When is there going to be a market in which to sell?

Another State Federal Tiff

CFACT

Under legislation Herrod introduced in the Utah House Feb. 11, the state would set aside $3 million to pursue its eminent domain case in the courts.  Utah Attorney General Mark Shurtleff, who would lead the charge on eminent domain, wholeheartedly supports Herrod’s legislation.

Last year, Interior Secretary Ken Salazar infuriated policymakers in Utah by withdrawing 77 leases for oil and gas exploration on federal land in the state.  Salazar’s move appears to have been the proverbial straw that broke the camels back, triggering the Herrod’s daring challenge to federal control.  Herrod and his colleagues hope that their action will encourage other resource-rich western states to launch similar eminent domain cases against the giant landlord in Washington.


Utah may attempt to acquire federal land by eminent domain.  Given the process and delineation of powers between the state and federal government, and the fact that the federal government sought and obtained this land for park purposes, one need not be surprised that the federal government is placing limitations on development.  The question now is one of federalism to the extent that there is a question of whether the state even has the right to condemn federal property.  This will offer an interesting challenge.        
 

Wyoming Landowner Group Seeks Protection

Wyoming Energy News

In Wyoming, a private entity can take someone else’s private property for its own economic gain. This was the source of a lot of heartache among some ranchers during Wyoming’s most recent natural gas boom. Some groups said rather than serving the greater public interest, eminent domain was invoked for limited corporate gains.

Those concerns led to some modest modifications of the state’s eminent domain laws in 2007. However, Freudenthal made clear that he wants the discussion today limited to electrical power lines and not roadways, oil and gas, or railroads.

REAL is a group of some 12 different landowner associations in eastern Wyoming trying to attract commercial-scale wind energy development as a means to supplement their ranching incomes. While those ranchers hope to make money from the wind turbines themselves, they don’t want their neighbors who don’t have wind turbines overrun with power lines and no compensation for it.

Rather than just making a one-time payment to a landowner — as is the case when eminent domain is used to gain an easement — Whitton said his group would like to see those landowners receive an annual payment.


The landowner associations in eastern Wyoming have a sense of what is really necessary in these private takings.  What they should effectively receive is a licensing fee.  Interestingly, the article claims that the utilities are concerned about paying landowners over a 1,000 linear mile project.  However, they have to pay them just compensation in a condemnation case and a licensing procedure premised upon a profit is not an irrational approach.

Gill Ranch Storage LLC (Pacific Gas & Electric)

CA.gov

Gill Ranch Storage is a project being developed to serve the wholesale gas market in California. It will be located at the Gill Ranch producing gas field, near Fresno in central California.
    
The Gill Ranch Storage LLC (Pacific Gas and Electric) has filed before the Public Utilities Commission its proposal to acquire land for a large gas storage facility.  The PUC must first approve the plan.  The hearing is upcoming and should be watched closely to see what type of challenges remain.  Given the recent activities opposing gas storage in California, this could receive vociferous objections.

Oklahoma City's Maps 3 Projects

News OK

Assistant City Manager Cathy O’Connor tried to quell fears that the city would push out all landowners in the area.

"This process does not mean we are going to acquire all the land in the Core to Shore area through eminent domain or urban renewal,” O’Connor said. "That’s not possible. There isn’t enough public money to do that.”

Oklahoma City has made an aggressive attempt to change the neighborhood by rerouting I-40 to the Oklahoma river.  A great concern for the businesses may turn out to be that the acquisitions may occur as a series of spot takings, leaving those not taken damaged, yet without compensation.

Utilities Get A Leg Up

Powell Tribune

Under the bill, no one could use condemnation authority to erect, place or expand collector systems. An amendment to the bill exempted public utilities.

Collector systems, according to the bill, are conductor infrastructure, including conductors, towers, substations, switch-gear and other components needed to deliver power from any commercial wind generating facility to transmission lines that send the power to a grid.

    
The Wyoming Legislature has granted the utilities control of all windmills in the State, by allowing windmill operators the right of condemnation power.

Is this good?  The response probably depends on whether the utilities will be regulated and whether property owners are treated fairly.

Industrial Parks in Detroit?

Crain's

With an intensive acquisition process ahead — about 130 privately owned parcels remain at the site — an EDC board member is asking for a course change, suggesting that the 1999 plan to assemble an industrial park may be outdated in 2010 Detroit.

“We ought to begin to recognize that some of our best ideas are 10 years old and reassess them,” EDC board member Conrad Mallett Jr., president of DMC Sinai-Grace Hospital, told fellow board members and Detroit Economic Growth Corp. officials at a meeting last week. “It's time to throw in the towel and say, "It was a hell of an idea, but it's not working out.' “    

    
The Crain’s article talks about the exceptionally difficult situation of assembling land for an I-94 industrial park.  The area is a mess.  It is the perfect reason for supporting Mayor Bing’s proposal to “downsize” the City.  

The underlying problem with the original economic park notion is that it probably was not legal.  Hathcock reversed Poletown, because the later decision barred acquisitions for economic benefit or tax improvements.   There is something distinctly different in trying to provide public services such as police, fire and utilities to an underutilized area and taking land so the tax base will improve in the community.
    
The reality of the I-94 industrial park is that the area was and is so blighted that the community could have moved forward  under the Blight Rehabilitation provisions.

The Politics of Clean Coal Project

AP

Lawmakers boosted financial incentives last year to lure such projects to Kentucky. And they're working on legislation this year that would extend eminent domain rights to pipeline companies that would dispose of carbon dioxide, one of the chief byproducts of converting coal to cleaner burning fuels.

That measure passed the House last week and is pending in the Senate.

Lawmakers have boasted that passing the pipeline measure would help put Kentucky out front in converting coal to cleaner-burning fuels and could help the state if federal regulators impose additional restrictions on carbon dioxide emissions.

Kentucky already allows the use of eminent domain for natural gas, oil and similar pipelines. The expansion would allow the proposed plants to pipe carbon dioxide to Texas to be injected underground.


This Business Week article covers a number of substantial issues.  First, there is a fear in many communities that if their State does not take on the Clean Coal Project, it will simply go to an adjacent State.
    
Then there is the risk the federal government will come after the State unless it obtains additional restrictions on carbon dioxide emissions.  
    
All this leads to the notion of carbon dioxide being injected underground.  The advantage of transferring the carbon dioxide to Texas by pipe for underground injection is that carbon dioxide may be one of the newer tools to obtain additional oil out of the ground.  
    
So there we have it, the States worrying that if they don’t have the coal gasification process in their State, it will simply be lost to another.

Tacoma Port Withdraws From Lawsuit

The News Tribune

Johnson said that he hopes the port won’t need to condemn property in the future. “I don’t like eminent domain, period,” Johnson said. “My goal is to see if we can’t do development without using that as a tool.”

The port’s real estate strategy has changed as the global economy has slowed. In the two years prior to announcing its deal with NYK, the port bought more than 1,000 acres of land, spending $110 million.


The owners won the right to maintain their properties, at least in the short term.  In Tacoma the port owners aggressively fought the condemnation.  However, the reality here was that the Port of Tacoma recognized there was no need and therefore no reason to spend the funds necessary to acquire. 
 

Demagoguery At Its Best

AP

The Utah House has approved a bill that would allow the state to take federally owned land through the use of eminent domain.

Lawmakers approved the legislation 57-13 on Thursday. Republican Rep. Chris Herrod, the bill's sponsor, says the federal government violated its contract with Utah when it gained statehood by not selling the lands.

Herrod hopes to use eminent domain to take lands at the monument that have large coal reserves. Herrod says development of the reserves could help fund the state's schools.

    
The Utah Legislature simply proclaims sovereignty over federal owned land in its State. The implication of Utah’s act is that somehow it retained powers when the feds took over and accepted Utah as a member of the union.
 
One of these possessory rights maintained by Utah was not to control its own land.  The land was probably transferred to the federal government and there it sits.  

This would not be too much of a problem in most states, but Utah has the fortune of large oil and gas resources in the area owned by the federal government.

Authorizing itself the opportunity to condemn the federal government raises two questions.  First, where the devil did it get its solitude to condemn the federal land?  Second, does Utah really believe the highest and best use of the property does not include the natural resources that it is acquiring?  If someone else is acquiring in an arms-length transaction, would the owner of this luscious land not expect to be paid for all of its natural resources?  The answer is evident.  
    
Good luck with the demagoguery, Utah Legislators!

Metro Obtains Tower Site For Convention Center

Tennessean

With Tower's cooperation, MDHA attorneys have filed an order to that effect for Haynes to sign, though the two sides will continue to argue about the parcel's value.

Tower had challenged MDHA's eminent domain case, arguing that it was based on an incorrect determination that the land is blighted. The company also said it had development plans for the site.


MDHA responded that blight had nothing to do with the condemnation, which was based on the Metro Council directing the agency last June to acquire land for the convention center. Haynes agreed and decided not to let Tower introduce evidence supporting its claims.
As for the possibility that Tower could ultimately win an appeal and regain its right to the land after convention center construction has started, Conner acknowledged that would be "uncharted territory" but added, "That's the risk people take when they go ahead" with construction.

 

Tower’s challenge was premised upon the metro development assumption that the property owned by Tower was “blighted”.  This question of what is blight will be the key for many future fights.  If a parcel is vacant, it is hard to see why it would be blighted.  There is no requirement for an individual to redevelop.

As the appeal is on-going, Tower has taken the position that it should obtain the return of the land in case it prevails on its necessity challenge.  The community is left with little to do but move forward to a condemnation process and redevelopment.  However, one only need look at the Hathcock decision in Michigan to determine that when there is not a necessity situation courts are more than willing to allow acquisition.

Pennsauken Problems

Philly.com

Grochowski maintains that the Pennsauken location gives the township an advantage.

"There's only so much waterfront property. And everyone wants to be on the water," Grochowski said. "And we have the light-rail line stopping at the 36th Street station, which could be a transit center."

Of the redevelopment zone's 350 acres, the township and Vineland Construction own a combined 160. The remainder will have to be purchased through negotiations with property owners including the Hess and Texaco oil companies, or taken through eminent domain, Grochowski said.

 

Pennsauken has desired to redevelop its industrial waterfront for decades.  It already owns a large portion of the area, and likely has access to most of the remaining required parcels.  However, the problems with this economy are such that although there may be demand for the condo development, the financing is much less likely.  It is surprising that the community does not step up and aid in obtaining municipal bonding.

One becomes very skeptical when recognizing that this proposed project has been ongoing for over two decades.  One can only wish Pennsauken the best in the much needed redevelopment program; however, one must also be concerned that the valuable properties on the river-front will be expropriated without payment of fair market value.   The effects of this condemnation will only diminish the values of the properties needed by Pennsauken. 
 

Kentucky CO2 Bill

The Daily Independent

House Bill 213 is an effort to turn the most environmentally damaging aspect of coal production — the releasing of carbon dioxide (CO2) into the atmosphere — into a positive by helping to create a new, environmentally sound use for it.

By capturing CO2 and storing it underground, Kentucky can continue to mine coal, but in a cleaner, more environmentally friendly fashion, said Adkins.

Kentucky already allows the use of eminent domain for natural gas, oil and similar pipelines owned and consturcted by private industry. HB 213 is a logical extension of that power to include pipelines carrying cabon dioxide. Other than during their construction, pipelines cause little or no damage to private property.

    
The linked Daily Independent article covers the basis for the Kentucky House Bill, as well as what CO2 capture and underground storage is intended to do.  The very pro-pipeline article, whether intentional or not, assumes that the project construction is the only short term damage.  This may or may not be true.  However, the real issue is whether proper regulation of the pipeline company exists and whether the permitting process by the State protects the community.
 

Rocky Mount Telegram-Jury Award Less Than Sought

The Rocky Mount Telegram

“I think that ($155,395) is probably more than someone would have paid for the house if they would have been selling it at that moment,” the foreman said.

Throughout the trial that began on Monday, lawyers for the state argued that the homeowners did not hire their own appraiser to back their “just compensation” figure. They also said the Landises had a financial incentive to come up with a price above market value.

On the stand, Sharon and Robert Landis said they came up with their numbers after extensively shopping around for another similar home in the neighborhood.

The jury foreman said the fact that the Landises did not have an appraisal to back up their numbers was a factor in the verdict.



    This article shows why owners need appraisers.  In this case, the agency appraiser called themselves “liberal” in the way he made  his appraisals.  The premise was fulfilled in its own way.  The owners chose to offer a value on their home of $220,000 against the $130,000 offer.  
    In most jurisdictions, owners have a right to testify without any true expertise.  However, some basis of valuation is required for the owners to be respected by a jury.  In this case, when the verdict came in at $155,000, the owner was effectively being told “get yourself an appraiser.” 

CO2 Pipeline Proposition

IBJ.com

 The measure declares that the transportation of CO2 by pipeline “is declared to be a public use and service, in the public interest, and a benefit to the welfare of Indiana,” citing its potential to reduce carbon emissions and to promote economic development.

“Granting eminent domain to a private entity is reason enough, we think, to oppose this bill,” said Kerwin Olson, program director for Indianapolis-based Citizens Action Coalition.


There is a growing chorus of opposition to CO2 pipelines premised upon giving the entities controlling the pipelines the authority to acquire by eminent domain.  

CO2 creates fear of danger to those who reside or work near the pipelines. That can be taken care of, at least in part, in the form of payment of just compensation.

However, the Citizens Action Coalition of Indiana is touching a very raw nerve in noting it is a private entity acquiring.  
    
The question regarding many of these CO2 pipelines will end up being whether there is some type of regulatory control over the entity in which the State benefits in the form of taxation or separation fees.  Further, the regulation must and should have some control over the extent that the pipeline developers can profit.

Recognition of CO2 Pipeline Benefits

Indystar

Indiana is the second-worst polluter in the nation from coal-fired power plants. We're just ahead of Texas. Most of Indiana's coal-fired generators consistently exceed very loose EPA guidelines. On Oct. 2, Jim Cramer of The Street.com downgraded coal stocks, declaring, "This fuel is doomed." He said reliance on coal "makes no sense at all." So, does building a carbon pipeline here in order to reduce atmospheric carbon emissions from coal-fired power plants make sense? What about using eminent domain to take private land in order to build it? This is what state Sen. Beverly Gard's Senate Bill 115 proposes.

In the short letter to the Editor of the IndyStar, Ms. Nair notes that Indiana Bill 115 provides an alternative to the sanctions which will soon be suffered in Indiana because of CO2 excess.  This is the basis for the "public use" for the need of CO2 pipeline and a safe storage endpoint.  The flip side of this is unregulated CO2 transmission.

St. Louis Northside Plan

KMOX


At issues in the case, is whether the city and the Tax Increment Finance Commission did its homework before agreeing to give McKee millions in tax breaks.    In opening remarks,  one of the plaintiff's attorneys,  Eric Vickers,  accused the city of rushing the plan through without careful analysis.

"Their whole blight analysis that was supposed to be done by the city was, in fact, done by the developer," Vickers said. "The city just tramped over the TIF statute."

The plaintiff in the case is northside homeowner Cheryl Nelson.   She has yet to testify, but in media interviews leading up to the case ( arranged by a public relations assistant) Nelson has claimed that her neighborhood of relatively new homes was arbitrarily blighted to give McKee tax breaks.   Nelson is expected to testify that the blighting designation has made her property values fall dramatically.

 

In the media, Paul McKee is taking quite a beating.  An example is the linked KMOX article above.
    

The reality is flight plans are frequently prepared by the developer.  The developer hires an expert who determines blight, which gives rise to the authority to have an area designated as blighted.
  

 One of the underlying problems with Mr. McKee’s statements that he will not acquire property through eminent domain is the likelihood for that representation to change in the future.  So long as the area is considered to be blighted, the statute will likely allow eminent domain in the future.  Passing legislation barring eminent domain will likely be elusory because the enactment could be modified by a legislative body at a future date.

Western Kentucky Acts Within Its Discretion

Kentucky News

Western Kentucky University acted within its rights when using eminent domain to obtain a property on the 1600 block of Normal Street, according to an appeals court ruling. Friday morning, the Kentucky Court of Appeals released an opinion that upheld a Warren Circuit Court ruling, stating that “the court did not err in concluding that WKU did not act arbitrarily or in excess of its authority” by using eminent domain to acquire 1672 Normal St.


The interesting part of this article is the commentary noting “the court did not err in concluding that WKU did not act arbitrarily or in excess of its authority”.  This has a double meaning.  First, it means that there is a review power in the courts, something that no longer exists in every state.  Further, the meaning is that there is a specific legislative delegation to Western Kentucky University allowing it to acquire property.  Given this is the first of the challenges in the post-Kelo era, it may be relevant as to how Kentucky agencies act in the future.

Introduction of bills in NJ state legislature

Mondaq.com

On January 12, 2010, the New Jersey State Legislature introduced four bills that indicate an intention to change eminent domain practice in the state. These bills are anticipated to help eliminate issues that have accompanied real estate condemnation in New Jersey in the past decade.
    
    Introduction of bills in the New Jersey State Legislature will be met with aggressive opposition.  The bills provide a more reasonable relocation for single family residences, and eliminate “pay to play” in New Jersey condemnations, and the prohibition of condemnation of residential or other non-blighted property under the redevelopment law.
     Developers have the greatest chance of succeeding at “pay to play” because every developer can find a friend to make the same donation as the developer would have made himself.  Sorry for my being so cynical, but with the recent Superior Court ruling, there is effectively no prohibition on “pay to play”.
    The final request is a moratorium be placed on any condemnations other than for direct use of property by the state or local governmental agency or utility.  This substantially modifies the existing law, and will likely be met with success. 

Is New York Still At It?

Democrat Chronicle

The U.S. and New York state Constitutions state that private property can be taken for public use "with just compensation." But courts have expanded the definition of public use over the years to include not just public works projects, but private economic development efforts.

Homik has refused to sell his property. The city plans to take his land, pay him $1.7 million — the highest appraised value — and keep part of the land for parking and public park space. It plans to sell the rest to Genecco for the total $1.7 million.

Because of that legal environment, Dana Berliner, a senior attorney at the Institute for Justice, a property rights advocacy group in Arlington, Va., said New York's state's legal system for eminent domain actions "is the worst in the country for property owners."

"It is absolutely terrible from start to finish and something must be done about it," she said.

There are no circumstances when eminent domain is OK for private development, she said.

"The government does not have the authority under the federal constitution and the New York state constitution to take property just to give it to another," she said.

If governments are allowed to seize property for economic development, "then there are no limits on eminent domain at all," Berliner said.

"Once you give government that right, you have no rights left," Berliner said.


    The Canandaigua City Council, City Council for a small community in New York,  is at the limits following the normal New York overreaching process.  Here, land is to be taken by eminent domain, half of it is then “flipped” for a profit so the community is proud it has a “profitable” project.
    The Dana Berliner comments in the article are accurate in summarizing the inflexible and delayed approach utilized by what are otherwise called “liberal” governmental bodies. 

 

Indiana Bill Provides Private Firms the Right to Take Land for CO2 Pipelines

Indiana Economic Digest

The measure declares that the transportation of CO2 by pipeline "is declared to be a public use and service, in the public interest, and a benefit to the welfare of Indiana," citing its potential to reduce carbon emissions and to promote economic development.

"Granting eminent domain to a private entity is reason enough, we think, to oppose this bill," said Kerwin Olson, program director for Indianapolis-based Citizens Action Coalition.

The group said the measure is to benefit Indiana Gasification, which in 2006 proposed building a $1.5 billion plant in Spencer County to convert high-sulfur coal to gas. Utilities could use the gas for heating and to generate electricity.

Indiana Gasification, which planned to sell gas to Merrillville-based NIPSCO and Evansville-based Vectren, shelved plans in late-2008 after failing to reach long-term gas supply contracts with utilities, which feared such contracts could impair their long-term credit.


The Indiana measure provides for a reasonable public use; protecting society from carbon emissions. However, the unregulated transfer of property, so that private profit-making companies can simply bring their pipelines through private property, raises severe constitutional questions.  It is unlikely that many states will allow private companies without government regulation to acquire land for the pipelines.

Gas Drilling Results in Waste Water Problems

Detroit News

The polluted water comes from a drilling technique known as hydraulic fracturing, or "fracking," in which millions of gallons of water, sand and chemicals are blasted into each well to fracture tightly compacted shale and release trapped natural gas.

Fracking has been around for decades. But the drilling companies are now using it in conjunction with a new horizontal drilling technique they brought to Appalachia after it was proven in the 1990s to be effective on a shale formation beneath Texas.

Fracking a horizontal well costs more money and uses more water, but it produces more natural gas from shale than a traditional vertical well.

Fracking is utilized to expand gas production.  The problem with fracking is that it pushes water into the ground in order to break the shale and in turn release trapped natural gas.  If the same water is used to repeat the process, then the salt/brine product may not cause great harm.  However, excessive brine will create result in hostility to the fracking method.  What likely will happen is that the salty brine will be the new CO2, with every user attempting to dispose of the byproduct.

Environmental Opposition to Development

Shelby County Reporter   

"The Alabama Rivers Alliance asks that the planning commission recommend that the city council reject the proposal to undertake rezoning which would allow White Rock Quarries to engage in mining activities within the town limits. If allowed, this Quarry will have adverse impacts on the Coosa River (including the structural integrity of the Logan Martin Dam), the Spring Creek Tributary of the Coosa River, the groundwater on which the citizens of Vincent and Shelby county rely, as well as the established property rights of the neighboring landowners. Formed in 1997, the Alabama Rivers Alliance is Alabama's statewide nonprofit river-protection organization. Our mission is to protect Alabama's rivers through water quality and quantity policy advocacy, grassroots organizing, and the providing of information to citizens in order to achieve clean and healthy watershed ecosystems, healthy people, strong economies, and a functioning democratic system of government in Alabama. Approving this rezoning would effectively sanction an unavoidable infringement of the rights of the town's citizens to the peaceful enjoyment of their property.

In light of the direction of the Alabama State Legislature and judicial system, the Vincent City Council needs to thoughtfully consider whether it wishes to take an action that seems to be so clearly at odds with the established state law and policy. We therefore request that this commission recommend that the city council reject this request for rezoning."     

    

The Shelby County Reporter letter to the editor is a recitation of issues of those concerned with mineral development and how it may interfere with natural resources of riparian rights and ground water.  The objection provided by Mr. Bartlett in the letter to the editor is a fine recitation of an environmental position.  Also, it is noteworthy how the letter concludes that the legislature should be reviewing the issue.

Consensus on Gas Royalties

Richmond Times Dispatch

"I'm aware of the problem," Cuccinelli, a Republican and former state senator who sponsored a bill changing Virginia's eminent domain statute, said in an interview Thursday.

"It strikes a sensitive nerve for me because of the property rights issue, and the fact that government is essentially sitting on citizens' money," he said.

"We intend to pursue that informationally to determine what's going on so we can give the best, aggressive advice that we can to the governor, and to the agencies involved, to get that money to the people whose property it is," Cuccinelli said.

Gov. Bob McDonnell said he was unaware of the natural gas royalties accumulating in escrow, or the legislation aimed at releasing the funds. But he's interested, he said Thursday in an interview at a legislative gala sponsored by Southwest Virginia localities.

"Any money that's sitting around not being used we need to put to work.
"
    
Consensus on gas royalties should not mean the government worked this out.  Dan Gilbert of Media General News Service, compiled a series of articles explaining the problem of the Virginia Gas and Oil Board and its failure to distribute funds that are owned by someone other than the Board itself.  While the parties are trying to come to a consensus, the government’s comments that “any money that’s sitting around not being used we need to put to work” hopefully does not mean that the government intends to somehow keep it or find a way of keeping those funds to the detriment of private individuals. 
 

Condemnation of Roanoke Property to Proceed

Daily ME

The Burkholders have argued that Carilion and the city of Roanoke plotted behind closed doors to take the land for what is now Carilion's Riverside Center and then pressured the housing authority to do their bidding. In its agreement with the city to buy and develop the former industrial area, Carilion had said it would buy the Burkholder and other properties to build its Riverside business park, which now includes the Virginia Tech Carilion School of Medicine.    
    
Kelo and many local decisions simply have not been able to deal with the issue of how to handle blighted property.  To claim property is blighted in order to be able to expand an adjacent use for a private user, simply is not a taking for public use.  The definition of blight is not being dealt with by courts, such as bye the Virginia court in this article.  The reality is that people have a right to maintain and hold their property unless a true public use for the property is required.  Joe Waldo is the outstanding condemnation and eminent domain attorney of Virginia, but the fight he is involved in is simply uphill.  This does not mean it cannot be won, but rather that it will take years to make the law rational.

Court Stops Drainage Project

Canton Rep

“The Court finds that there is no public necessity for the appropriation,” Park wrote in her 12-page ruling.

The drainage issue didn’t exist until the business park was created, and “...the public use is limited to the drainage of a street that will be used primarily by tenants of the industrial park or private entities that will build there,” Park wrote.

Irwin declined to comment on the judge’s ruling until she had a chance to review it with her attorney.    
    


    In the situation described above, but for the development of the business parks, there would be no issue of drainage.  The question then is what happens when there is development?  
    The law truly diverges when there is a situation in which the end use is a public use, but it is only necessary because of a private desire.  A few cases, such as Los Angeles v Rindgee, maintain when the benefit is only for one user, that the taking is not a public use.  Other cases, such as Grosse Ile v Grosse Ile Bridge Company in Michigan maintain that when the end use is a public use, that, in and of itself, is enough to allow the taking to occur.

Airport suing for 5 acres of fruit

Herald Palladium    Todd said the airport has been negotiating with the fruit market since 2002.  "We're supposed to give landowners fair market value. Neither party is
supposed to come out ahead, because this is taxpayers' money," he said. "We
know we're going to impact them, so the offer was based not just on market
value but on how losing the five acres would impact them."


It is amazing that the Airport Commission agent blames it all on 'greed' and
'taxpayer dollars' when maybe; just maybe, the owner wants to be made whole.
Did the authority think about the effect of what was taken on the remainder
or the compensable business damages? Likely not.
And as for 'negotiating' since 2002, did the Airport Authority PR man notify
the paper that the Airport Commission had the choice of time as to when it
would take the property? Likely not.


Eminent Domain at Columbia

New York Times

The Columbia decision “is the first thing that’s happened in New York that suggests the threat of a change in our eminent domain law,” said Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. “I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making.”

The clamor for reform is also being driven by a recent wave of sentiment against development in New York, as demonstrated last month when the City Council defied Mr. Bloomberg and rejected a plan by the Related Companies to convert the Kingsbridge Armory in the Bronx into a shopping center. Emboldening critics is the sense that Mr. Bloomberg’s influence has waned since his narrow victory in last fall’s mayoral race.     


The New York Times may not have this one right.  Part, if not all, of the anger is because the citizens of New York have come to believe that a few very favored and very wealthy individuals are taking advantage of the eminent domain system.  The Police Power retains its superiority over the Eminent Domain clauses of the Fifth Amendment and Due Process of the Fourteenth Amendment, at least for the time being.  This writer fully expects the New York Court of Appeals, being New York’s highest court, to reverse the lower appellate court opinion. 
 

Public Policy and Parks

ABC 13

WASHINGTON, D.C. – To commemorate the 75th anniversary of the Blue Ridge Parkway, U.S. Senators Jim Webb (D-VA) and Mark Warner (D-VA) are joining North Carolina Senators Kay R. Hagan (D-NC) and Richard Burr (R-NC) today to introduce legislation authorizing the National Park Service to acquire up to 50,000 acres of land surrounding the historic roadway. In the House of Representatives, Congressmen Rick Boucher (D-VA), Tom Perriello (D-VA), Heath Shuler (D-NC), and David Price (D-NC) introduced companion legislation. The Blue Ridge Parkway’s anniversary will be celebrated in September.

“The Blue Ridge Parkway is one of the Commonwealth’s most significant tourist attractions, providing economic benefits to communities in Southwestern Virginia,” said Senator Webb. “As a longtime supporter of natural and cultural landmark preservation, I look forward to working with my colleagues in the Senate to pass this legislation.”

    
    Washington has the ability to spend whatever it desires, for whatever it desires.  Hopefully, the acquisition of 50,000 acres of land truly suffices to help expand tourism without endangering the real estate market in the Virginia and North Carolina communities where the road passes through.  Given the tremendous beauty of the Blue Ridge Mountains now, one simply wonders whether there really is a need to expand the park system here.

Dan Gilbert- Bristol Herald Journal

TriCities -Click Here to Read the Series

Above is a link to a series of articles written by Dan Gilbert. He is a writer for the relatively small town Bristol Herald Journal in Bristol, Virginia.  In his eight piece series he deals with the issue of whether mineral owners have a right to be treated in a fair fashion.  The legislative process of forced pooling with no true notice to the owners that they are losing their minerals, and the failure to have any negotiation over the leased value or the royalty rate were simply fascinating.  I hope the Pulitzer people have their eyes wide open, because this is the type of investigative reporting that should occur everywhere!  As a Detroit boy and a reader of the Kwame Kilpatrick dirge for the past year, I would put Dan Gilbert’s series of article on at least an equal plane.

Valuing Leases

Dallas News

Meanwhile, McClain's daughter, Carolyn McClain, appears to be sitting on the better end of what might be the city's most lopsided lease.

Written by Little for a term of 99 years, the lease guarantees that Folsom or his estate will pay the McClain family tens of thousands of dollars a year for what is, by itself, an all but useless piece of land.

"That's a tough lease," Little said, "and it was drawn that way because ... [Hazel McClain] wanted to protect herself. She had many, many chances over the years to sell along with other properties. She was just not ever a seller."

Newt Walker, a well-known Dallas real estate broker who has been closely involved with deals involving the hotel land, called the lease highly unusual because it tied Folsom and his estate personally into payments for nearly a century.  
 


When one reads the above article in totality, they may ascertain what happened in this situation is that the owner is asking for all 99 years of rent commitments rather than the capitalized value of the leases.  The article misapprehends that rents are to be capitalized rather than to be added together to determine property value.

Oregon, others petition FERC to halt gas pipeline

Mail Tribune

The state of Oregon and the National Marine Fisheries Service filed separate petitions Tuesday for a new hearing with the Federal Energy Regulatory Commission in an attempt to stop construction of a liquefied natural gas import terminal in Coos Bay and a gas pipeline that would cross the upper Rogue River watershed.

They joined a coalition of local residents, environmental groups and fishermen who filed a similar petition on Saturday, asking FERC to reconsider its December approval of the terminal and 234-mile pipeline from Coos Bay to Malin near the California border.

In challenging FERC's decision, Gov. Ted Kulongoski and Attorney General John Kroger said the commission failed to meet standards set in the Federal Clean Water Act and the Coast Zone Management Act.

In addition, the decision failed to adequately consider the environmental impacts of the proposed project, much less the need or alternatives available, they said.

               

This is a serious situation.  The FERC provides great deference to utilities in its proposed paths.  However, opposition will present challenges to the utility.  It is possible this route will change to avoid certain condemnation actions.  Do not be surprised to see the eminent domain route change if there is a united opposition, which may include responsible government officials.

Durham Neighborhood "blighted"

DURHAM -- The Durham Planning Commission declared the Rolling Hills/Southside area to be legally "blighted" Tuesday night, but its deliberation was dominated by "eminent domain."

As a result, what was in essence a formality in the process for organizing rehabilitation in the run-down and crime-plagued area off the Durham Freeway gained approval by only a 6-5 vote.

"I'm not sure what we've done," commissioner Jackie Brown said after the vote.

Such designation authorizes the city to create a formal redevelopment plan which, if adopted by the City Council, improves Durham's chances of getting tax credits and other financial aid for the project; and allows the city to impose design and quality standards for future private development higher and stricter than those of its general ordinances.

But some citizens claimed the designation would empower the city to seize private property

In approving the "blight" designation, the Planning Commission also called for a provision in the Redevelopment Plan that bars the city from using eminent domain to acquire owner-occupied property; and to specify that the Hesters' shopping center is not part of the redevelopment area.


    Frequently, the local citizenry has little interest in the process of blight designation.  They assume that it is a foregone conclusion that they will lose their properties.  Sometimes, some of the people willingly want to lose their property, while at other times, the sense of anomie percolates and the local residents and businesses do not desire to participate in the process.
    In many states, including North Carolina, acquisition by condemnation will occur when the eminent domain statutes provide that blighted properties may be acquired for clearance projects.

 

Payment Prior to Dispossession

SOMERS POINT--It's been a fixture on the Somers Point circle for nearly three decades, and now the Pearl restaurant and bar, is officially closed. It was an emotional day for the owners, who were not ready or willing to part with the business they've put their heart and soul into.

As Pearl Lin takes the final tour of her restaurant, it looks nothing like the place she's owned and operated for 27 years. "Look at my restaurant," she said walking around the torn apart kitchen in tears, "it's going to be like this...like this?"

The business was a labor of love for Lin and her husband who did everything there, and now have no choice but to hand the keys over to the state. "And I get nothing," said Lin in tears, "here almost 30 years and I don't have nothing."

"It's like I lose a child," said Steve Lin. Their restaurant and the land it sits on has been taken by the NJ Department of Transportation through eminent domain as part of the Route 52 causeway project. "They don't have consideration...this is not necessary," he said, "never come to talk to us, never. Never sit down, listen to our opinion."

The Lins say they were offered $1.6 million for the property, which isn't much more than what they bought it for nearly three decades ago, so it can be turned into a parking lot for the Somers Mansion. They say so far, they have not received any money. "Nothing," said Lin, "not a dime, not even a penny. Not even at this moment, not a penny and now they want a key."
    
A spokes person for the NJDOT issued this statement, "It is sometimes necessary for the New Jersey Department of Transportation to acquire private property for major transportation improvements. When it becomes necessary to acquire a property for transportation purpose or for any other public use, various activities are undertaken to ensure that the property owner’s rights are preserved in recognition of the enormous impact of the use of Eminent Domain. NJDOT has operated according to the procedures set forth by state law in acquiring properties deemed necessary for this $251 million Route 52 Causeway replacement contract."


    The owners of the Pearl Restaurant in New Jersey claim they have not received the estimate of just compensation prior to dispossession.
    This is surprising, to say the least.  Many states and provisions of the Uniform Relocation Act provide that the payment, of at least the estimate, should be made prior to the loss of the premises.  Something is indeed strange in this situation.

Magna Sale

The Baltimore Sun

Magna Entertainment Corp. agreed in bankruptcy court Tuesday to postpone the sale of two Maryland horse tracks as it works with bidders to provide reassurance that the Preakness would remain in the state.

A Delaware bankruptcy judge also allowed Magna to end a profit-sharing agreement with Joseph A. De Francis and other former owners of Laurel Park and
Pimlico Race Course, who had a previous agreement to split any potential proceeds from slot machine gambling.

One might think that a bankruptcy sale, with no strings attached, is the way to sell Pimlico.  The problem here is that the State of Maryland has lived with the Colts fiasco for twenty years.  The citizens of Maryland view the Preakness as a State Icon. 

The problem in the process is that the common notion of bankruptcy is that assets are garnered and sold in order to maximize the value of the assets.  However, a limitation on transfers inhibits optimizing value.

Robert Spencer

Freep.com

Regarded as a catalyst and visionary thinker in his efforts to bolster the economic progress of Detroit, the longtime civic leader was president of the nonprofit agency since its creation in 1978 until his retirement in 1994.

"Bob was the right guy in the right place at the right time for Detroit," said Emmett Moten Jr., former vice president of commercial development for the DEGC. "He was always the go-to guy who negotiated and set the tone for getting all sides working together toward a common goal. He deserves much of the credit for getting things done during some very difficult times in Detroit."

The DEGC is supported by public and private funds to help local businesses obtain financing and counseling to locate or expand in Detroit.

Under Mr. Spencer's leadership and with the assistance of subagencies such as the Downtown Development Authority, the DEGC was responsible for helping finance the renovation of the Fox Theatre and construction of the Chrysler-Jefferson Avenue plant and the Millender Center.

Robert Spencer was an amazing asset to the City of Detroit and Southeast Michigan.  A modest and compassionate person, his leadership made all the difference in having Detroit Economic Growth work for the City of Detroit.  Emmet Moten got it right.  Spencer was the "right guy" at the time.  But he would have been the "right guy" for any project because he truly was what is called a "mensch". Our condolences to the Family of this very decent person.

A NEW IMPEDIMENT TO THE DRIC PROJECT

freep.com

Ambassador Bridge owner Manuel (Matty) Moroun has bought a big parcel of land in southwest Detroit that could complicate plans to build a rival bridge there.

Moroun's Central Transport has purchased the former Yellow Freight truck terminal at 7701 W. Jefferson, Moroun spokesman Phil Frame said Thursday.

The approach ramps for the planned Detroit River International Crossing bridge between Windsor and Detroit would cross a corner of the parcel. DRIC is a joint project by the governments of Michigan, Ontario, the U.S. and Canada to build a bridge from Detroit's Delray area to Windsor.

Moroun opposes the DRIC plans because it would take toll revenue from his bridge. With Moroun owning the Yellow Freight site, the DRIC group would have to resort to a government taking of the property, or at least a corner of it.

Mr. Moroun’s purchase of a parcel, which may be acquired as part of the Detroit River International Crossing project, should not be an impediment to the project.

The development in the City of Detroit and Southwest Michigan is severely inhibited until the three Senators in control of the process recognize that a publicly owned crossing funded by bonds is not analogous to Poletown.  This is not an issue of competition, but rather the construction of a public project by two nations and the two cities where the project is proposed. 

Delaying DRIC is an absolute DISASTER for our community.  Further, on an individual note, the State will likely confront serious inverse condemnation claims by owners in the area that are “wilting on the vine” because of the delay.

Regional Airport Fight

Delco Times

I think the idea of a regional airport authority will be another ploy by Philadelphia to do a land grab of properties surrounding the airport.
It will be the same as the land grab in Southwest Philadelphia back in the late 1950s and early 1960s. Big real estate corporations speculated throughout the area known as the “Meadows.” People were forced to move out of the area through condemnation.
Having an airport authority will make it easy to force people out of Tinicum Township. People in Ridley Park, Prospect Park and Norwood will be next on the agenda.
Once the airport authority is established, there will be no stopping the greed of Philadelphia to swallow up viable taxpaying communities to feed their coffers


    The Delco Regional Airport is like so many others.  The smaller Delaware County and Tinicum Township especially, are minor in the greater overall plans of the Philadelphia Regional area.  Eminent domain proceedings will be utilized in order to take large tracts of land for airport expansion.
    This dispute between the local community and the Airport Authority controlled by a larger city is common.  A similar fight occurred when a parallel runway was planned at the Detroit Wayne County Metropolitan Airport.  Usually, fights over control of a small community’s destiny are subservient to the interest of the larger city.

Great Plains Reservoir Construction

Joplin Globe

Maps started circulating a month or so ago among those who live along Little North Fork Creek.

They depict what will happen if a dam is constructed north of the Medoc community to create a reservoir that would extend from Jasper County into Barton County.

“It has been the big buzz around here lately,” said Brant Barley, whose family has farmed along the creek since 1904. “This would be a pretty big deal for us. Some people are negative toward it, but you can’t stop progress. I’m sure Joplin will grow and need more water in the future.

“If they compensate us for the value of the land, it would be OK. But it’s more than just the value of the land. This is how we make our living. How will be compensated for that?”

Construction of a dam to create a reservoir could be decades away — if ever. Design work, land acquisition, environmental-impact statements ... all must be done before a shovel is turned. There’s the prospect of eminent domain for those who will not sell their land, and there’s the issue of cost and who would pay for it. Federal sponsorship in the form of an earmark to the U.S. Army Corps of Engineers would be required...


An important issue in the Great Plains area is reservoir construction.  The constructions deals with the uncertain future of water in the Great Plains states.  The article above outlines the issues raised in the construction and water transfer of the various river basins in South Dakota, Missouri and Kansas.  The issues involved are substantial and serious.  The long-term effect on the environment and on the economic viability of communities is a substantial issue which the parties will have great problems in balancing.

Opposition to Rural Wind Projects

Twin Cities
 

Occhiato has been a vocal opponent of a proposal to build 11 turbines in Greenvale Township in Dakota County, near a state-designated wildlife area around Chub Lake. She lives in Greenvale with her husband, John, and their two small children, and describes herself as an environmentalist.

"Places of ecological significance should be excluded from industrial development, including wind farms," she said.


This Minnesota article covers a number of interesting points.  There is a true balancing act required in the determination of whether there is danger to the ecology, versus the benefits of avoiding oil usage by utilizing wind as an energy source. 
 

Demand for Gas Storage

Journal Advocate

Paul Jornayvaz, managing partner of Blue Sky, said, “Blue Sky is extremely pleased that FERC granted the certificate just a few days more than six months after we filed our application on June 5 of this year. The Blue Sky storage facility would be an important addition to the Central Rockies market and we believe additional storage in the area could help shippers in situations such as the shortage of supply recently announced on KMIGT and the lack of available capacity currently existing on REX.”

As noted in the article granting Blue Sky a gas certificate in Logan County, Texas, the demand for gas storage is there.

Cadeville Gas Storage Project

Just in time for the holiday travel season, the City of SeaTac wants to use eminent domain to shut down a family's airport parking business.

Highline Times

James and Doris Cassan have operated Park and Fly since the 1960s, slowly purchasing more and more of the property that they originally leased for the business and gradually expanding until they employed more than 40 people.

Now, SeaTac intends to take Park and Fly by eminent domain. The City claims it needs to turn the private parking business into a government-run parking garage, but other evidence suggests the City has considered reselling some of the property to private developers as part of a scheme to turn the area adjacent to the airport into an “entertainment district.”

Trent England, Citizenship and Governance Center Director at the EvergreenFreedom Foundation, says SeaTac’s actions are abusive.

The aggrandizement of airports is sometimes just too much!  Here we are, thinking closer to the airport lends to an increase in value.  To the contrary, nothing good results!  Private ownership is deemed to be subservient to the unreasonable demands of the airport authority.

Waste Transfer Station

Chapel Hill News

The Orange County Board of Commissioners is scheduled to decide Monday night whether to pick one of two sites for a transfer station or send trash to Durham's transfer station for disposal in a landfill.

"The choices are between three all fairly unpalatable choices," Commissioner Steve Yuhasz said.

The Town Council has already rejected offering the county a separate town parcel on Millhouse Road for the transfer station. The council was responding to concerns of the historically black Rogers and Eubanks roads community. They consider the area, just north of the current landfill, part of their neighborhood and have accused the county of environmental racism for considering another garbage facility there.

But Clifton said getting the two town parcels is not a deal breaker and that the project could still go through on the smaller 10-acre tract.

"It is not a requirement that we have those two sites," he said.


The Orange County Board of Commissioners of North Carolina is scheduled to acquire a covenant restricting a property to residential use only.  The limitation, if overcome, is one which the owners themselves could have obtained.  The voiding of the deed with an eminent domain action raises substantial issues regarding the appropriate valuation, including the possibility that the owners themselves and the owners of the surrounding area should be the beneficiaries of the increased value.
    An outstanding attorney, such as Autry, will turn this condemning governmental agency upside down in its reckless attempt to divest people of their rightful just compensation.

Attempt to Block Intermodal Terminal

All Business

A judge has turned down Montgomery County's attempt to block a proposed intermodal rail yard in Elliston. In a decision that reached county officials Monday, Richmond Circuit Court Judge Melvin Hughes ruled Nov. 18 for Norfolk Southern Corp., which wants to build the yard, and the state of Virginia, which proposes to help pay for it. Montgomery County Administrator Craig Meadows said he had not discussed the matter with the county's attorney.

That left unclear whether the county might appeal its loss. "We just learned about it and are still evaluating our options," Meadows said. Joyce Howard, an Elliston resident whose home the railroad wants to buy, expressed regret. She said she does not want to move and had hoped the county would win.


The county challenged giving state support to the project as an unconstitutional giveaway of public funds for a private purpose -- the expansion of Norfolk Southern, a Virginia Beach-based railroad and major freight carrier. The judge disagreed, saying the project has primarily a public purpose and is in keeping with the state's function to maintain a quality transportation system.


It is unlikely that a county will have the legal standing to challenge a proposed acquisition, much less the legal basis.  The Department of Transportation and most jurisdictions supercede local control.  The Department of Transportation is limited under certain circumstances when there is specific legislation.  However, when issues are related to the roads and other transportation modes, the Department of Transportation will be given broad discretion in proceeding to acquire land for such activities as intermodal rail terminals.

New Jersey Farm Purchase

Central Jersey

NORTH BRUNSWICK — The Township Council paved the way for preservation of the Pulda Farm on Monday, adopting two ordinances that will enable the township to take the property using eminent domain.

Both ordinances passed unanimously. The first ordinance set aside $11.8 million for the purchase, including $11.21 million to be raised through the issuance of bonds.

The second ordinance authorized the township's administrator and attorney to acquire the land by any means necessary, either by negotiation or through the power of eminent domain, a legal maneuver that allows the township to seize land for public use after paying the land owner fair compensation.

In this case, the township hopes to preserve the farm as open space and prevent a possible 325-unit housing development.


    Here we go again.  Here we have a mayor of a community stating that he wants to preserve a little open space, fully failing to recognize the potential development viability in the long term.  This mayor can say right now there is no lot selling, but this entity, holding a farm tract readily available for development, is not in the market to just sell at some discounted value.  
    Further, one has to wonder whether preservation is in and of itself a public use.  The New Jersey judiciary has the potential to initiate a policy of barring what are called pre-textual takings.  Such takings have recently been found unconstitutional in Hawaii.

Florida Beach Dispute

World Network

DESTIN, Fla. - The latest property rights battle before the U.S. Supreme Court started where the Gulf of Mexico laps at the crystalline white beaches of this seaside resort. The justices will hear oral arguments Wednesday over whether a nearly seven-mile stretch of beach is public or private after the state of Florida poured more sand on the rapidly eroding shores. The new sand dumped in a project that ended in 2007 was designated public property by the state,...    

Local communities have been placing sand on beaches in Florida due to the beach erosion.  Residents claim their property values have been diminished because of the renourishment, claiming a “taking” under the U.S. Constitution.
What these owners are likely to find is that the navigable servitude reaches the high water mark of the waterway itself, in this case the Atlantic Ocean, and it that this high water mark delineates public and private ownership.  However, this will be for the United States Supreme Court to determine.

Utilities want more gas storage

Denver Post


CASPER — Rocky Mountain states continue to expand natural gas production, which has spawned several efforts to increase storage capacity to hedge against volatile pricing.

Blue Sky Gas Storage LLC plans to convert an abandoned oil field in northeast Colorado to a natural gas storage facility. Merchant Energy Partners plans to expand another gas storage field in the same region. Both companies said they had more than enough customers subscribe to the projects.


Not only is there a demand for gas storage, but there is a demand premised upon the recognition that the gas suppliers desire to hedge against volatile pricing.  Blue Sky Storage is one of the more active participants in such places as Logan County, Texas and northeast Colorado.  Clearly, despite any objection to acquisition for gas storage, there is a need for the storage. 
 

Landowners ask judge to reopen condemnation case

Roanoke.com

 An attorney for a Roanoke couple forced to sell their land as part of a condemnation lawsuit filed a motion today to ask a judge to reconsider new developments in the case.

Norfolk attorney Joe Waldo stated in a motion filed in Roanoke Circuit Court that the Roanoke’s Redevelopment and Housing Authority’s condemnation and expected sale to Carilion Clinic of a 3-acre tract of land on Reserve Avenue would produce a blighted area and result in a loss of tax revenue and jobs...


    It is always difficult to get courts to reopen judgments.  This is because of the public policy that there should be finality of judgments and certainty in results based upon final judgments.  However, there is always an issue of a decision being made on improper proofs.  Under such circumstances, one must look at the situation and the Court’s need to consider whether there is a balance between the mistake made,  fairness, and certainty in the process. Joe Waldo presents a valid claim that something went awry in the eminent domain proceeding noted above by the Roanoke newspaper.

Turtle Creek Bayou

 

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

[Docket No. PF09–14–000]

Turtle Bayou Gas Storage Company,

LLC; Notice of Intent To Prepare an

Environmental Assessment for the

Planned Turtle Bayou Natural Gas

Storage Project, and Request for

Comments on Environmental Issues

 

The Turtle Creek Bayou Natural Gas Storage Project, Liberty County, Texas, intends to store gas in two salt storage caverns. This offers a protective shell, likely avoiding leakage issues, which seem to be prevalent in many storage fields. In all likelihood, the gas storage company was intelligent enough to obtain the lease from the owner, knowing how much it would have to pay for the storage facility prior to initiating the application.

 

FOIA Requests

Daily Astorian

The Federal Energy Regulatory Commission has dropped its appeal of a federal court decision and agreed to produce a list of private landowners who are affected by the Palomar gas pipeline.

FERC appealed a decision by Oregon's U.S. District Court in a Freedom of Information Act dispute filed by Columbia and Willamette Riverkeeper.

Riverkeeper requested FERC's mailing list for landowners affected by the pipeline development. FERC uses the list to send the landowners information regarding their rights and the potential use of eminent domain.

After FERC dropped its appeal, the agency produced all of the information the groups requested, including the mailing lists.   

Maybe FERC has dropped its appeal and produced a landowners witness list of those affected by the potential condemnation, but it does have some concerns.
    

The whole notion of FOIA is to fully apprise the people of public agency activity. Balanced against this is the concern of governmental agencies that lawyers will unfairly solicit cases and misrepresent what is occurring in the governmental action.  Any governmental agency would admit that sometimes they run amuck in their offers and in the way they treat people.  At the same time, there is a tough balance here between the right to privacy of those being taken and the right to knowledge and free exchange of information between those being taken.  This simply is not an easy question to answer.
    

Without regard to all the statements above, having a fair and open Freedom of Information Act is a lot better than having nothing!

Appraiser Lack of Ethics or Kicked in the Teeth by the Low Ball Offer

Courant.com

Kenneth J. Jones was a property appraiser with a blemished record when state authorities welcomed him into the fold two years ago as they tried to push down the price of a parcel they took for a highway right of way.

Push it down, he did.

Along the way, Jones would play a starring role, at $200 an hour in taxpayers' money, in a debacle that would cost the state more than $28 million and raise serious questions about how Connecticut values the property it takes by eminent domain.

 

When appraisers get themselves in trouble, at least in Michigan, they frequently go through the hearing process without counsel.  At times the conduct, properly explained, is not deserving of State Licensing Board sanctions.  

At other times, appraisers, with or without counsel, have missed the uniform standards of professional appraisal practice so substantially, that the violation requires a sanction from the Licensing Board.

In Connecticut, an appraiser apparently had already been sanctioned, while known by the governmental agency attorneys trying to acquire the property, yet was pushed through as the appraiser of choice by the State of Connecticut because his number could be and would be low enough.   He was arguably an “out of state” individual especially knowledgeable in the type of property being taken.  When it all came through at trial, he simply was the local appraiser “purchased” because he could give the lowest value.

The above short synopsis of the article is but a small part of the problem inherent in the approach taken by Connecticut officials.  In most jurisdictions, at least with regard to the State Department of Transportation, attorneys will take tough and hard-nose positions on what is compensable and what is not compensable, but rarely is it seen where they simply buy off an appraiser in order to come to the lowest number.  Any experienced eminent domain trial attorney has found this to occur, but it is the exception rather than the rule.

Southwest VA Gas Wells

TriCities

Every month, a bank in Roanoke receives checks for thousands of dollars belonging to people who might never cash them.

The checks are royalty payments for people whose mineral rights the state of Virginia has leased – against their will or without their knowledge – to private energy corporations. These payments represent the financial crumbs of natural gas production in Southwest Virginia – a multibillion-dollar industry that in 2008 produced enough gas every second to heat the average home for 16 days.

But instead of reaching the pockets of mineral owners, the money is funneled into an opaque state-run escrow fund, where it has accumulated with scant oversight for nearly 20 years. As of October, the fund held more than $24 million – and that isn’t everything it should hold.


The outstanding research done by Daniel Gilbert illustrates the problem of having quickie state legislation of major decisions.  Here, people have lost the valuable property interest, in their mineral rights below the ground.  This benefits private entities without the least real or full obligation.  Further, the opportunity to expect and calculate the correct amount of mineral rights removed was not even taken into consideration.

But for the too speedy legislation of the state house, placing basic rights of the individuals in a quasi-judicial process, this never would have happened.  There are all sorts of issues as to whether there was knowledge or lack of knowledge in the owners, potentially barring them from the opportunity to be fully compensated because of unconstitutional public policy decisions.  This will likely receive recompense by the judiciary.

Thou Shalt Not Steal Gas

TriCities

On today’s front page, we launched an ambitious and complex eight-day series that involves millions of dollars and affects thousands of Southwest Virginia property owners. Between unmasking other forms of malfeasance, corruption and outrage, investigative reporter Daniel Gilbert has spent portions of 13 months – so far – delving into an issue that affects many thousands of residents and absentee landowners from across the country. Nearly 20 years ago, gas corporations and the commonwealth of Virginia figured out that below the surface of seven Southwest Virginia counties lies vaporous gold – pools of methane gas worth billions of dollars. The legislature crafted a law that allows these companies to extract the gas without the knowledge or consent of private property owners – a subterranean form of eminent domain. Those companies are getting rich. The moms and pops who own the land are getting screwed. That’s because the state created a system whereby coal companies, who were deeded the coal a century ago by landowners, are fighting with those landowners’ heirs over a paltry portion of the gas royalties.

Closely akin to the gas storage field cases is the issue of gas removal.  Daniel Gilbert, of the Bristol Herald Courier, outlined in the first of an 8 day series of articles, the outrageous conduct by which a legislative body has enabled producers to divest many Southwest, Va property owners of their valuable rights.  This series is described by J. Todd Foster, editor of the Bristol Herald Courier in the editorial.

Reverter Clauses

Fosters.com

PORTSMOUTH — Residents concerned with how the city plans to allocate the money needed to lift deed restrictions from Alumni Field provided an earful of input to the city legal department Tuesday night.

The purpose of the public hearing was to obtain comment regarding the disposition of the $590,000 in damages arising from the eminent domain proceeding to remove deed restrictions from the Parrot Avenue property, also known as the Peirce Property.


The property was acquired by the city by deed from Joshua W. Peirce, on Nov. 14, 1913, and is subject to a number of restrictions, most notably "that the land herein conveyed shall be held and improved by the City of Portsmouth forever as a park and for no other purpose."

After a public hearing in October 2008, the City Council affirmed the public's need to remove the restrictions to renovate the Portsmouth Middle School because it was believed the field limited the use of the property.


    Buckingham County, City of Portsmouth has the same difficult analysis as so many other communities do throughout the country.  Quite simply, gifts are made of property which, over the years, would not have been made or would have been made differently but for the fact the community wanted the donation.  There are statutes in some jurisdictions which limit the reverter or the reversionary interest after a period of years, and most states limit which type of clause is used.  
    The problem with these donations is they truly are restraints on the alienation of property, something that has been opposed throughout our constitutional history.

Yet, if we seek to void donations on the basis of being restraints on alienation, we severely inhibit the intent of the donors and effectively take away rights to which they are truly owed by the community that accepts the bequest.

Securing your rights in eminent domain cases

Cyber Homes

You may think it can’t happen to you, but so did dozens of residents of New London, Conn., when economic development officials took their homes by eminent domain in 2000 to allow Pfizer Corporation to build a research campus in their coastal Connecticut town.

They are among tens of thousands of U.S. residents affected by eminent domain cases in which governments and governmental bodies appropriate private land for public-use development. The New London eminent domain case led to a 2005 Supreme Court case in which justices ruled that state and local governments could force private landowners to turn over their properties for publicly sanctioned private development.

Originally viewed as a setback for private property rights, the case has actually had the opposite effect, as more than 40 states have passed laws or promulgated regulations designed to protect the rights of landowners and restrict the use and abuse of eminent domain. Ironically, in November 2009, Pfizer announced that it planned to abandon its New London research facilities and consolidate those jobs into a campus a few miles away in Groton.

‘Displaced for nothing’

This change in plans reveals a cruel twist in many successful eminent domain takings, according to Sandra Phillips, an assistant professor of finance at the Whitman School of Management at Syracuse University. “A lot of times private developers will say they want so many parcels of land to build a development, but my study and a lot of other studies have shown that often times these developers don’t ultimately move ahead with the project that they said they would, and the homeowners and business owners are displaced for nothing,” she says.

And while the new eminent domain laws restrict the circumstances under which private developers and governments can take private land and the compensation that must be provided when they do, there are still many takings to accommodate construction of highways, airports and even sports stadiums. Eminent domain laws also come into play if a government or government-sanctioned private company wants access to your land for a specific purpose such as to lay pipes, says David Kaufman, J.D., Ph.D., of Kaufman Law in Fairfax, Va.

So what are your options if your property is targeted? Your first step should be to obtain representation by a lawyer experienced in eminent domain issues in your area, says Alan Ackerman, managing partner at Ackerman, Ackerman and Dynkowski, a law firm in Bloomfield Hills, Mich. “Because the laws vary so much from state to state, you need an attorney who is expert in the laws in your state and the type of eminent domain taking you are looking at,” he says.

Cases can take years to resolve, or at least months, so don’t rush into an agreement with whatever entity wants to take or use your property. It’s important to get a qualified appraiser to assess the value of your property, Ackerman stresses. Depending on where you live, you may also be entitled to additional compensation for the expenses and hassles involved in moving or living with the inconvenience of having your property torn up for months or years, says Kaufman.

Focus on compensation

Stopping eminent domain takings is very difficult, so in most cases the best approach is to focus on getting the most rewarding compensation package possible. You don’t want to lose money as a result of losing your home or allowing access for a public purpose to your land.

In many states, such as Michigan, compensation paid to landowners in eminent domain proceedings is a fixed percentage based on the current fair market value of your property, says Ackerman. “Here, a resident who lives and pays taxes on their home gets 125 percent of the value of their property.” Some states also provide that residents won’t be forced from their properties until they have money in hand to compensate them for the taking, so that they can buy or rent property elsewhere.

It’s vitally important to know your rights in an eminent domain taking, stresses Phillips, because many people, especially low-income homeowners, have been forced from their homes without sufficient compensation. Although some states offer money above and beyond fair market value, not all states do, and the fair market price isn’t always sufficient to find comparable replacement housing. “Just compensation is rarely enough,” she says. “You rarely get fair market value for what it would cost to buy a new home, let alone compensation for the ancillary costs that are not taken into consideration, such as the time in your community, the neighbors, the churches, and the social outlets.”

Biting the Hand that Feeds you or Fairness?

Nashville Public Radio


The largest land owner in the footprint of a planned downtown convention center has turned from friend to foe of the Metropolitan Development and Housing Agency. Tower Investments has filed suit to see appraisals of its property after MDHA condemned the land last month.

In return, MDHA was to let Tower see the appraisals. But Marks says the agency has refused after making an offer below what Marks considers fair market value. In condemning the property, MDHA would pay nearly $15 million for Tower’s parking lot, which has a tax appraised value of $12.6 million.

    Simply put, Tower Investments, likely with the aid of the government in a proposed future development on its parking lot, is now being taken.  After assembling much of the land, Tower is now being condemned for the convention center.
    What will be problematic for this community is that there is an assessment that is in no way related to the value of the future development.  As so frequently occurs, assessments are based upon uses as they exist without consideration of the future and highest best use.
    How would you feel if you had a house on 10 acres that is  on a state highway and it turns out over the years that development has finally approached so that you are now about to sell as a commercial piece?  The commercial value is huge multiples of what your property is worth as residential, especially since the road is getting busier as communities grow.  How would you feel if the DOT came in to take your whole property and told you that your property was only residential?
    The whole notion of highest and best use is the most profitable and advantageous use even if placed in a different use or vacant.
    The assessment looks at how the property is being used.

When a gas pipeline easement must stay an easement

Star Telegram

Several southeast Arlington residents say they fear for their safety — and their property values — after learning about a natural gas pipeline that will run behind their back yards beneath high-voltage power lines.

The pipeline would be buried largely in utility easements, except for a section of the Coldwater Creek neighborhood where some residents own the land behind their fence lines where the pipeline would run.

Wiggs said that his company has made fair offers for the easement use based on independent appraisals and that some property owners have negotiated higher payments. Wiggs said the company will go to court to reach a settlement with property owners who do not voluntarily sign agreements.

Cole and other residents said they feel as if they have no one to look out for them. The Texas Railroad Commission cannot regulate the pipeline’s route, and Arlington has control only when the pipeline crosses public property.

In some jurisdictions, easements for a lengthy period of time are considered fee, or complete takings. By example, historically in the Midwest, 99 year leases were considered to be sales of the total property, rather than a lease. So long as the 40 year easement does not fall within a fee sale, when the utility company comes to condemn, at best it will not try to obtain a fee take. This is because the company has no right to take fees of some of the properties and easement ownership in others. It will be interesting to see what the utility does in this situation.  

Kinder Morgan Project

Summary of the Proposed Project

Kinder Morgan proposes to construct and modify its existing Huntsman Storage Facility. Kinder Morgan says that the completion of the Huntsman Ridge Expansion Project would benefit the Rocky Mountain region by meeting the immediate and longterm needs of the region as well as providing flexibility in managing and storing gas supplies.

Kinder Morgan is proposing to:

· Abandon in place two 1,200 foot sections of 8inch diameter pipeline;

· Install two injection/withdrawal wells;

· Rework two existing injection/withdrawal wells;

· Install various ancillary facilities including a 400 bbl tank, pig receivers, a slug catcher, and a gas cooler; and

· Install 2,000 feet of 12inch diameter pipeline.

The general location of the project facilities is shown in Appendix 1.\1\
\1\ The appendices referenced in this notice are not being printed in the Federal Register. Copies of all appendices are available on the Commission's Web site at the ``eLibrary'' link or from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426, or call (202) 5028371. For instructions on connecting to eLibrary, refer to the last page of this notice. Copies of the appendices were sent to all those receiving this notice in the mail.

If approved, Kinder Morgan proposes to commence construction of the proposed facilities in October 2009, with an inservice date of mid year 2010.

Land Requirements for Construction

Construction and renovation of the Huntsman Storage Facility would impact about 15.6 temporary acres where 0.8 acres would be permanently impacted. All land disturbances would occur entirely on private lands.

Kinder Morgan is proposing to utilize existing access roads for the proposed project. No land disturbance would be required for additional access roads.

Kinder Morgan Interstate has filed a Notice of an intended expansion to the Huntsman Storage Expansion Project in Cheyenne County, Nebraska. All the property owners that may be affected by the request for an easement or other instrument transferring the storage interest should be receiving a mailed notice. Those otherwise being potentially affected because of the environmental effects also will receive notices.

The individuals have the opportunity to have an “intervenor” status by filing in accord with the notice provided on April 20, 2009. 

This project will also include extension of pipelines and may have other effects such as the reconstruction, as well as closing of well sites. 

Florida Dept of Transportation Public Hearing

TBO

ZEPHYRHILLS - The Florida Department of Transportation's plans for widening U.S. 301 between Zephyrhills and Dade City involves very little widening.

The department studied two options for widening the 71/2-mile road to six lanes, but project costs would have ranged from $85 million to $215 million. Both plans would have forced the department to buy extensive right of way and could have forced the closure of more than 30 businesses.

So instead, the DOT will recommend widening only the southernmost segment between Eiland Boulevard and Kossik Road. The rest of the highway would remain as is, except for intersection improvements at Centennial Road, Clinton Avenue, Morningside Drive and U.S. 98 Bypass. No businesses or residences would be relocated, and the entire project would cost about $42 million.


The Florida Department of Transportation is making an honest attempt to eliminate its eminent domain costs by placing a road in a small right-of-way.  The issue then is one of whether this will allow for safety in the community.  So long as safety is fulfilled, why should the agency expend money or take more property than is necessary.  However, if this is not safe, one would hope that the Commission would come to its senses upon such a finding.

Public Interest

The Badger Herald

Most people would agree that taking someone’s property against his will is immoral. Forcing your neighbor to sell his house, for instance — regardless of the amount offered — would be morally repugnant. After all, the essence of a fair transaction — a trade — is the consent of both buyer and seller. Since your neighbor’s house belongs to him, taking his property against his will is clearly an act of theft.

If “public interest” is to have any meaning at all, it can only mean that which is in the interest of all individuals. And this can only mean one thing: freedom. Freedom, of which property rights are an essential part, is what allows “the public” (i.e., each individual) to pursue their interests while respecting the rights of others to do the same.


This article concludes that an acquisition for the University of Wisconsin is not a “public interest.”  It claims that required acquisition by eminent domain is “morally repugnant.”  A fair transaction between parties contemplates the buyer and seller entering into a voluntary transaction.  Such is not always available.  In Madison, Wisconsin, no one at the University may have determined that there is a reasonable price that the sellers are to sell at.  Likely, the Board at the University has not yet determined even a basis for fair market value.  If the two come to an agreement, the transaction may yet occur.  If not, an eminent domain proceeding will occur.  At that point, it will be up to the court system to determine the just compensation.


The opinion article published in The Badger Herald has misapplied the notion of “public interest” as one of 100% agreement as to a decision.  This claim conflicts with the common and accepted principles of our republican democracy that the need for a public use will prevail so long as just compensation is paid in a condemnation acquisition
.

Judge ponders consolidating

Gwinnett Daily Post

A judge will consider consolidating two cases involving a controversial land deal to buy property for the McGinnis Ferry Road extension.

Tony Powell, an attorney representing Old Peachtree Partners, asked Judge Debra Turner to consolidate the breach of contract case the county filed when the partners backed out of the contract with the county’s condemnation case filed a year later.
Click here to find out more!

But Deputy County Attorney Mike Ludwiczak said combining the two “simple” cases would create “one mess of a case that is fraught with danger.”


“I just don’t have the time to try it twice,” Turner said before the arguments were complete.

    
There is always a problem in trying to obtain a resolution by negotiated settlement if the settlement is later offered as part of the litigation when the resolution breaks down.  Most jurisdictions maintain that settlement negotiations are not admissible for that specific reason.

Conflicting with the policy barring proposed settlements and negotiations is the notion that cases should be consolidated in the best interest of justice and for the proper running of the courts.  The simple notion by the Georgia trial court judge that the court “did not have time to try the case twice”is not a rational basis for consolidation.  Court time alone should not be the sole consideration. 

Nashville is in for a fight

Nashville Business Journal

Appraisers working for the Metropolitan Development and Housing Agency had the task of assigning values to several downtown properties that may soon give way to a new downtown convention center.

Determining property value when comparable sales are few and far between can be a tough task, and one that, for up to seven parcels, may be in the hands of a jury.

    
When the City of Nashville decided to build a convention center, like so many other communities, it disregarded the basic principles of eminent domain.  First, the owners have the right to choose the time and place of sale.  To claim that there is a short-term lull in the market, which there clearly is right now throughout the United States, does not fairly allow the owner the opportunity to be fully and fairly compensated.  Using a few low ball sales does not help in the condemnation process either.


Nashville is in for a fight!


 

Delaware Chrysler Site Purchased

Delaware Online

The University of Delaware signed an agreement Friday with Chrysler to purchase the 272-acre site of the company's shuttered Newark assembly plant for the bargain price of $24.25 million.
    
The university was able to get the property for a little more than half of its estimated value of $43 million by agreeing to accept liability for any environmental cleanup that might be needed.
Court papers detailing the potential sale -- which still has to be approved by a New York bankruptcy judge -- indicate UD is buying the property "as is."


Delaware made the deal of a lifetime for its State in purchasing the Chrysler Newark site. This will bring the University of Delaware up three steps.  First, it obtained the parcel for far less than its own appraisal.  However, it now has to be troubled by the environmental cleanup.  One must recognize that cleanups, as they are now propounded amongst jurisdictions, do not necessarily cost what they did only a few years ago.  This is because the property can likely be capped, and if not capped, federal and state funds will be used through brownfield rehabilitation.  This project is a key project for the development of the whole State of Delaware. At the same time, Chrysler will not be mired in bankruptcy litigation and potential state litigation for years to come.
 

Columbia Gas may be called for a foul for a fair ball

Cumberland Times


To Flintstone resident Billy Joe Mathis, the tactics employed by Columbia Gas Transmission and its efforts to find additional storage capacity for natural gas progressed to demands, intimidation, threats and outright lies.
An Oct. 29 letter to Mathis continues from previous correspondence that “as you are aware, (the company) plans to conduct seismic testing, in part to determine the feasibility of increasing the storage of its Artemas (Pa.) storage field.”
An undated letter with the signature block of Larry Smith, permit agent for Geokinetics USA Inc., said the company is requesting a seismic permit for “seismic surveying and/or geophysical testing ... We are covering approximately 27,961.6 acres in Bedford County, Pa., and Allegany County, Md. We are sending you this permit asking for your permission to cross your property for a temporary amount of time. We need your urgent consideration because we are starting our test soon.”
The letter, with land agent Beth Reed’s signature block at the bottom, claims that statutory law grants Columbia Gas Transmission the “right to complete the seismic testing on your property in the absence of a signed permit. "


    In this situation, Columbia Gas is being called a “liar” for something that it may not be lying about.
    In order to ascertain whether Columbia Gas Transmission may enter property to perform testing, one needs to look at two possible authorities that can be utilized.
    Before discussing the issue of authority, one must recognize that FERC does not have to first approve a project for the testing to be initiated.  Rather, the whole notion of testing is to determine whether there is a need for the property and whether the physical attributes of the property, in this case gas storage, falls within the gambit of the need.
    The utility may look to one of two jurisdictions for authority.  First, the subject proposed acquisition is about to occur in Maryland.  As such, the utility may arguably look to state law to determine whether state statutory provisions allow entry prior to taking.  Most states have such provisions, with a specific caveat that any damage caused by the entry prior to the condemnation must be paid for.  In the alternative, the utility may look to the FERC regulations, which may provide the authority before investigation entries.
    The reality is that the utility needs to figure out how to get its public relations working in a way that it does not make owners feel like it is a steamroller with complete control of individual rights.  Maybe the utility has a right to enter but it treats individuals as if they have no rights.  However, in the long run, we own our utilities via legislative constraint and a fair Public Service Commission and FERC regulatory process.



Just compensation is not a windfall

Kansas City Star

    A condemnation begun during downtown’s redevelopment rush in 2005 has been settled, and while the market is decidely cooler, the owners of Gigi’s Wigs & Beauty Supplies are $1 million richer.
    Chung Hoe Ku and Myong Suk Ku, the couple running Gigi’s, will receive $990,000 from the city for the two buildings housing their business at 1219-21 Grand Blvd. They also are expected to get about $150,000 for relocation when they pull up stakes in December after 25 years at the location.
    The Gigi’s settlement demonstrates the influence of recent efforts to change or abolish the use of eminent domain for economic development, Smiley said. When the U.S. Supreme Court ruled condemnation was a valid redevelopment tool in 2005, efforts were made in many states, including Missouri, to outlaw the practice.
    


    The Kansas Star headline reads that the individuals receiving full compensation for the property somehow received a “windfall.”  The Authority knew that they had to pay the money and ended up settling, not trying the case, when it paid the million dollars.  The Kansas City Star should be ashamed of itself for concluding receiving just compensation is somehow a windfall!
   
 

Green Bay has a serious problem

Green Bay Press Gazette

The state Supreme Court has declined to review a court ruling that Green Bay must pay at least $6.4 million in a case involving the city's efforts to redevelop the old Younkers building.

Zima said the lost lawsuit could cost the city up to $12 million, although he didn't explain how he arrived at that calculation.

In condemning the lease and property, the city paid Wisconsin Mall Properties $5.7 million — reportedly $3.1 million for the lease and $2.6 million for the building.

Meanwhile, the city is suing the lawyer who advised it during the condemnation process.

The city claims that Benjamin Southwick of Richland Center failed to correct an appraisal error that led to the $6.4 million judgment against the city and in favor of Wisconsin Mall Properties, the owner of the building.

This article explains how the city council and city attorney were well aware of the risks when the community took an assignment and indemnified a tenant from any liability for breach of its lease with the landlord. The tenant, Saks, Inc., was paid a substantial sum to give up its leasehold interest. As part of the agreement, the community indemnified Saks. This was discussed at an open hearing of the city council.

Well, all the problems came home to roost. The landlord sought the damages and received what may turn out to be up to $12 million dollars for the loss of its tenants by the community's interference with the leasehold relationship.

All that is left are a bunch of lawsuits, with all parties pointing fingers.

It is amazing how otherwise sophisticated individuals can get so lost in the legal process.

Sometimes acquisition agencies do it right

Link to complete filing

The linked Petition by Blue Sky for certification and conversion of a previously operating gas production facility to a natural gas storage facility, states that it does or is about to own all fee/(landowner) rights and mineral rights by voluntary acquisition. This application process shows that a utility or acquiring agency seeking the acquisition of gas storage rights can treat owners fairly.

Link to complete filing

 

FMV in a Down Market

Millions to Nowhere

 

The News Tribune

Millions to nowhere Earlier this month the Port of Tacoma canceled plans to develop the Blair-Hylebos Peninsula and to build a terminal for NYK Line. It was a complex project that grew more so and eventually crashed as the recession hammered the shipping industry. The Tokyo-based shipping line is still coming to Tacoma, but will use an existing terminal.

From nearly the beginning, the project – started in 2007 – was fraught with problems, including cost estimates that ballooned from an initial $800 million to nearly $1.2 billion and a construction schedule that was virtually impossible to meet.

The port’s plans to remake the Blair-Hylebos Peninsula into container terminals for shipping lines go back nearly two decades. By 2005, the timing for such a development was right.

“The market was white hot,” Farrell said in a recent interview. “It was the time to make things happen if you were going to make things happen. We struck while the iron was hot.”

Manufacturing in China was exploding. Ports were seeing record-high import volumes. Rival ports in Southern California were congested. Shipping companies were looking for new places to expand.

The reality of the Tacoma Port is that it is like so many other ports along both coasts. When import activities were wildly flowing, only a few years ago, every major city along the ports desired to establish itself as the main port of call for Chinese imports. These projects have failed not only in places such as Tacoma, but in Jacksonville, Fla and elsewhere. The difficulty remains that the government has taken upon itself to acquire land for private companies, all in the name of the  “port authority”. One has to wonder whether there is simply too much government intervention in the process.


 

MoDot spending $2.3 million to get bridge right-of-way that city sold for $2

Lake Expo Online

ST. LOUIS -- At least two years after engineers selected the route of ramps for a new Mississippi River bridge, a city agency agreed in 2003 to sell publicly owned land in that path to a developer for $2.

The blighted property north of downtown, once used by a trucking company, fell in the LRA's hands in a tax sale. It sits along the east edge of Interstate 70, just west of Broadway, in a neighborhood of worn commercial buildings and vacant lots.


The site attracted the interest of Archview Storage, an enterprise owned by several businessmen who include Randy Heil, who operates a tool-and-die shop nearby, and Daniel McGuire, president of McGuire Moving & Storage.

The purchase of a property for over $2 million dollars from an owner that purchased the property a few years before for literally $2.00, poses an interesting question. Bridge and road projects are so uncertain, is there not a time in which a local community is better off taking the risk there will be no project and allowing development wherever and whenever it can occur in the area. A conflict between development at the community's assistance and a future public need draws a hazy line. Clearly, neither the community nor the Missouri Dept of Transportation wanted the result. However, there is also an owner here who would likely prefer keeping and maintaining the property after taking a risk in development.

Expansion of the Cunningham Storage Field Located in Pratt and Kingman Counties, Kansas

Many utilities have arrived at a conclusion that their storage fields effectively “leak”, or “travel outside the original contemplated storage area.”  We can find a number of recent filings such as the Pratt and Kingman County example above in which the gas storage companies are required to expand its area which serves as a “buffer” in order to protect its gas interest.  This occurs where there is other gas or oil facilities in nearby areas, raising the question of whether the gas is spread so as to allow other producers to utilize the stored gas and production as part of the producer’s production.  This can frequently be determined by what are called “markers,” which serve to determine whether the gas has migrated from the storage area to other nearby production areas.  The process is one which results in owners of nearby mineral rights to lose the respective resource asset, often resulting in an eminent domain proceeding.
 

Although the list of owners is “confidential”, it can be obtained with the agreement that the information will remain confidential.  This is in line with many state FOIA requirements of confidentiality barring communications with owners in a proposed right-of-way

Texans' dislike of eminent domain

Star Telegram

On Nov. 3, Texans will have to decide just how much power government should have at its disposal to take private property for a "public good." Proposition 11 would, in theory, limit the power of the state to forcibly take a resident’s property.

Sounds like a good idea. But the apparent high level of support for the proposition, contrasted with our track record, makes me question just how sincere we are or if we’re trying to take the easy way out of the debate.

There are numerous examples of eminent domain abuse that, despite some vocal opposition, ultimately came to fruition with both government and public support: Cowboys Stadium, Rangers Ballpark at Arlington, Texas Motor Speedway and the Trinity River Vision, to name a few. Our distrust of the state’s power to take our property seems to wane when it comes to big, shiny edifices.

The Star Telegram opinion espousing eminent domain for private development misses the point. The baseball and football stadiums could have been built with private funds. However, we can make these franchises instant billionaires by building their stadiums and letting them control all the concessions. Somehow, the politicians are worked over enough by these franchise owners to succeed in allowing all the public revenue go to the owners without the owners being at risk. The real argument is that there are times in which no other recourse but the eminent domain process will allow or without eminent domain, the liability of the community is impeded.  A prime example of this is the power of eminent domain over leaseholds with the old Trusts in Hawaii.

Preakness Safeguard

 

Hometown Annapolis

A new Maryland law allows the state to use eminent domain to seize the Preakness, in the event of a deal to take that race out of the state. Magna International, the current owner of Baltimore's Pimlico Race Course, contends that this is unconstitutional - and Magna might be right.

But, unconstitutional or not, the law is starting to seem like a very good idea.

Magna is in bankruptcy proceedings and has asked a judge for permission to sell its Maryland racetracks - Pimlico and Laurel Park - on condition that buyers promise not to move the Preakness from Maryland. The schedule requested by the company allows the 60-day review period called for by the law, which would let the state step in if there were any threat of such a move.

The Preakness, which dates back 136 years and has been run in Baltimore every year since 1909, is a nationally known pillar of the state's wobbling horse-racing industry, and one that Maryland simply cannot afford to lose. The state's attempt to apply the legal doctrine of eminent domain to an annual sporting event may be too broad - but, given the U.S. Supreme Court's outrageously expansive interpretation of the concept in Kelo v. City of New London (2005), who is to say?

Although Magna has reserved the right to challenge the law, it's in a financial hole right now and can't quibble. So all the bidders for Pimlico will have to pledge to keep the Preakness where it belongs. That's as it should be.

The Hometown Annapolis newspaper sounds so pleasant, the community says, "we want to keep our historical racetrack in the community despite the question of its profitability.  If the racetrack owner wants to sell somewhere else for the higher amount, shame on him and he cannot move!" The reality is that fair market value might have to be paid if they ever got to the point of having the State of Maryland condemn the Pimlico Race Course. The problem here is that this diminishes the right of private entrepreneurship. Further, if Maryland would have given the race track a half square deal on the casino licensing, as it was supposed to, none of this would have come to fruition. With the licensing, there would have been a very successful race track and a very successful casino, with the State collecting taxes all the way to the State Capitol.

 

St. Louis: inviting bad deals

 

St. Louis Dispatch

O'Fallon-based McEagle Properties wants the rights to rebuild much of a 1,500-acre swath of north St. Louis. To get the project off the ground, it wants $391 million in tax-backed financing.

Aldermen will be considering a 102-page agreement that is similar to one the city's Tax Increment Finance Commission recommended last month. It forbids the use of eminent domain without a separate bill by aldermen and provides some benefits for people who are moved to make way for the project. It requires that McEagle find a co-developer for at least one-fourth of the land. It breaks out the project into four phases and sets the table for a separate finance agreement for each.  

 

This is an invitation to milk future city councils and an annuity for future alderman when there vote to condemn is required.  To state that future decisions to condemn are at the discretion of the government inivites bad deals and litigation for all.

 

Same conclusion, slightly more deliberate

Dallas News

In 2005, the Legislature enacted additional limits on the practice. Now, Proposition 11 on the Nov. 3 ballot would go further by writing restrictions into the Texas Constitution, ensuring that property-owner protections could not be easily undone.

The proposed amendment makes clear that land can be taken only for public use. The government must own, use and "enjoy" the land after acquiring it, not sell it to a private entity to raise tax revenues or spur development.

In short, the government couldn't take your land without a plan for its use or to simply resell it for a profit. The amendment also would limit the Legislature's ability to grant the power of eminent domain to other entities, requiring two-thirds votes in both houses.

Finally, Prop 11 would prevent the government from clearing entire neighborhoods in the name of battling blight. This would force the evaluation of each parcel and protect the homeowner of a tidy house who has the misfortune to be surrounded by rotting properties.

Because this amendment largely reinforces existing law, its approval should not derail existing plans requiring land acquisition, such as efforts to build Texas reservoirs or Dallas' work to assemble land for redevelopment.

On balance, this proposition is good for property owners. But the haphazard process of writing and rewriting legislation yielded some awkward language within the amendment – for example, how to define the government's "enjoyment" of land. That leaves open the possibility of legal challenges that could stymie proposed projects. If unintended consequences result, the Legislature can't simply clean up the language once it's in the Constitution.

The Dallas Morning News is slightly more deliberate and scholarly in arriving at the same conclusion as the Houston Chronicle.

Houston Chronicle Editorial Favors Restriction on Takings for Private Use

Houston Chronicle

Respect for private property rights runs deep and wide across Texas. When a growing number of Texans came to believe those rights were threatened by a 2005 U.S. Supreme Court decision based on a Connecticut case, the response was decisive: Create a state constitutional amendment to block the threat.

The result, four years later, is Proposition 11 on the Nov. 3 ballot, which would prohibit “the taking, damaging, or destroying of private property” for purposes of economic development. The Houston Chronicle urges a vote for Proposition 11.

It was for good reason that the high court ruling in Kelo v. City of New London alarmed many property rights advocates here and elsewhere. It upheld the taking by right of eminent domain of private residences by the Connecticut city for purposes of economic development and expanding the tax base. Proposition 11 would prevent takings of property for either of those reasons.

I am not saying the Kelo Court was correct in rejecting specific language of the Fifth Amendment but apparently, Federalism does work!  The above is an excerpt from Houston Chronicle Opinion in support of a constitutional restriction in Texas.

The Public Use Balancing Act

Star Bulletin

Suzette Kelo should have won. Taking a perfectly good single-family house in order to "economically revitalize" a neighborhood is neither good policy nor good law. However, neither that case nor the Hawaii case that preceded it should have resulted in the recent Hawaii case overturning a government taking for a very public road. Nor are any of the three quite as described by Rob Thomas in his recent review of the book "Little Pink House" ("Story behind court ruling resonates in isles," Star-Bulletin, Sept. 20).

First, as Thomas suggests, the U.S. Supreme Court relied on its earlier Hawaii Land Reform Act decision in deciding Kelo. But the Act does not permit the use of eminent domain by landowners. A state agency - the Hawaii Housing Authority - condemned the land under single-family homes. No court has ever authorized the use of condemnation by private citizens.

Second, the Connecticut government redevelopment agency in the Kelo case condemned the Kelo property in order to economically revitalize an entire neighborhood - not "to entice a major pharmaceutical company to relocate to New London." The relocation was already a fact of life.

The government concluded that such economic revitalization was for a public purpose (not public use like a road, a park, a school, and so forth - a critically important distinction). Given where Thomas goes next - that the private client which his firm represented was similarly a small and powerless victim of an essentially private and pretextual condemnation at the behest of a large and powerful private developer, devoid of any public merit or use - the juxtaposition is hardly surprising.

Simply not true.

First, the road in question for which the County of Hawaii condemned Thomas' client's land is, was, and always was meant to be a public bypass road designed to relieve highway traffic congestion in South Kona. The road commences at one point on the highway, virtually parallels the highway for nearly five miles, and then ends at another public road near the same highway. Does this sound like the county "(took) land from Hokulia's neighbors for a road to service the (Hokulia) project"? Such a road is a classic use by the public.

Second, the county had planned for such a public bypass road for decades, but could not afford to acquire the necessary land and build it. Enter Hokulia, which agreed to both acquire the land and construct the road at a cost exceeding $50 million in exchange for the guarantee of its existing zoning for 20 years in order to complete its approved resort-residential project. Hokulia did not "order" the county to do anything. It simply told the county that it was going to be well nigh impossible to fulfill their agreement to finish a very expensive public bypass road if the county didn't condemn a hold-out private landowner in the path of the highway. Does this sound like the county "sold the decision whether to exercise eminent domain to the developer"?

Third, Thomas prefaces his version of the Hokulia case by observing that "eminent domain dispossess(es) the politically powerless of their land and business in favor of moneyed private insiders," presumably attempting to cast his client in the role of the powerless and Hokulia as the private insider. But Thomas' client is a well-known and well-off local family. Politically powerless? Hokulia the private "insider"? Not likely.

Fourth and finally, until the recent decision of our state Supreme Court, courts held that only government condemnations - of private property for a public purpose (redevelopment, economic revitalization) might be "pretextual" - for private, and not public, benefit.

There are two vitally important points: First, the pretext argument had - until now - never been applied to a condemnation for use by the public like a public road, but only to condemnations for sometimes ill-defined and mixed (public-private) purposes.

Second, the handful of successful pretext cases - until Hawaii's - are all extreme examples of government takings for transparently private purposes, like a government agency condemnation of a 99 Cents store next to a Costco at Costco's express direction in order to prevent competition.

In sum, the national 48-state backlash following the condemnation of Suzette Kelo's little pink house is a predictable reaction to government overreaching in aid of economic revitalization. However, government must have and exercise its condemnation power to acquire private property for facilities classically used by the public - like public roads.

So much as suggesting such condemnations can be pretextual is just plain wrong, both in terms of public policy and law.

———

David Callies is an elected member of the American College of Real Estate Lawyers, an elected Fellow of the American Institute of Certified Planners, and the Kudo Professor of Law at the University of Hawaii, where he teaches land use and real property law. The author of "Public Use and Public Purpose after Kelo v. City of New London," he also filed a brief in the Kelo case supporting Kelo, on behalf of 13 law professors.

The complete article is attached because it speaks to the logical relationship between eminent domain and Public Use.  Condemnations can be necessary for public use, and Professor Callies provides an insightful synopsis.

Trying to Stop the Animal Already Loose

WAAYTV.com (Northern Alabama)

On Monday night, the Decatur City Council took it's first steps towards fighting against a potential fuel depot. They passed a unanimous resolution giving the mayor's office and Decatur Utilities their full support in fighting the depot. They also say they're willing to pay any legal fees that may come along in the fight, and authorized the use of eminent domain to protect the water supply. 

 

In Alabama, the City of Decatur has decided to threaten the use of eminent domain to limit an otherwise valid use of property.  What the City does not understand is the dangerous economic peril it places on the community when it contemplates condemnation of an otherwise valid exercise of private property ownership.

Is the Problem Due to Condemnation?

 

KIDK

REXBURG - A Rexburg homeowner feels like they are being taken advantage of by a company using Eminent domain to drill for gas on his property in Oklahoma.

These are photos of an 80-acre property in Oklahoma.

The Stephen's Group is drilling for natural gas on the Larsen's property against his desires.

"In 1775 a gentlemen named Paul Revere jumped on his horse at midnight warning people that the British were coming. I feel the same urgency about this. But it's not the British who are coming, it's actually the elite Americans, the ultra rich," said Royce Larsen.

Because of a Supreme Court decision in 2005, "Kelo V. City of New London," Private enterprises can utilize land from other private users as long as it is of public interest.


This is an interesting synopsis of an Oklahoma TV station comment on a drilling project.  If one looks at the facts closely, the investigator might just find that the owner's predecessor in title (prior owner) gave up their rights, agreeing to the future entry, which is apparently now occurring.  If not, we have another fat company at it again, acquiring the interest for pennies on the dollar!

 

Hutchison gets Texas Farm Bureau endorsement

My Fox DFW

Citing concerns about private property rights, the Texas Farm Bureau endorsed U.S. Sen. Kay Bailey Hutchisonfor governor Monday, abandoning Gov. Rick Perry.

The farm bureau endorsed Perry in his previous two runs for governor, but has been at odds with the Republican incumbent over what the bureau says is his lack of action in curbing abuses of eminent domain and protecting private property rights. Farmers have vocally opposed Perry's Trans-Texas Corridor toll road network that threatens to take farm and ranch land.

"Sen. Hutchison has been a leader in the U.S. Senate on agriculture and property rights issues," said Kenneth Dierschke, president of the Texas Farm Bureau. "For the future of Texas, we call for new leadership, new ideas and a new vision."

He also praised Hutchison for supporting the elimination of the estate tax and the deductibility of the state sales tax on federal income tax returns.

Perry's spokesman, Mark Miner, dismissed the farm bureau endorsement as "political payback" for Hutchison because the bureau operates an insurance business and Hutchison voted for the bailout a year ago of the financial and insurance industry.

The sitting Governor of Texas can make whatever claims he desires, however he is  coddling the special interests that propound taking for personal benefit has come to hurt him.  Governor Perry has promised to modify private benefit takings, which did not occur on his watch in major part due to his disengagement.  It is sad indeed that a Public Private Partnership, which makes so much sense, will fail because of his unwillingness to recognize the state decision granting power under Kelo.

 

 

MSU: East Lansing Fights for Eminent Domain

 

So, when Mr. McGinty says that the judge "found (my legal arguments) to be without merit," he was, quite simply, lying.

There is no way that Mr. McGinty could have innocently "misinterpreted" the judge's very clear and precise statement - whether the city had "standing to file the request for demolition. . is not an issue before me." What could be more clear? And why lie about something so important?

I know this word is not very "lawyerly," but I can only think of one word to describe the city's action in this entire City Center II controversy - including the public statements of the mayor and the city attorney in this "demolition-of-historic-homes-we-don't-own" example: bizarre.

I have filed a new appeal, and I'm going to keep fighting this, because if the city can get a permit to demolish historic properties they do not own, then every property owner in every historic district in the city of East Lansing may very well face a very serious challenge to their property rights.

I would like to add a special warning to the fraternities and sororities that recently had their houses declared to be part of a special historic district. If you think threats of eminent domain are a horrible problem - think FarmHouse and East Village - add the threat of demolition to that abuse of power and things will be much worse

The City of East Lansing has planned its community to place student housing in clear and separate areas of Michigan State University.  The decision is one of public policy and not this scrivener.  However, one wonders if the Hathcock decision prohibiting takings for third party transfers and the reaction to Kelo passed by the citizens of Michigan prohibiting these types of condemnations will bar the taking when it is finally filed.

 

The Spoof : South Side of Chicago Still Smoldering After Pre Mature Demolition of 'Olympic Site' funny satire story

Chicago, Il/ Urban Renewal News - The South Side of Chicago is still a 57 block smoldering pile of rubble after pre mature demolition was carried out on the property taken by 'eminent domain' by Chicago Mayor Daley in anticipation of the 2016 Olympic games being awarded to "Bam" Town!

Reporters trying to find out what happened have been met with silence as the Mayor and his entire staff have not been seen since roughly 10:30 a.m. EST last Friday when Chicago was the first city eliminated from Olympic consideration

 

The article is an absolute spoof (please read it in its entirety, the notice is at the end).  However, when it comes to eminent domain activities intended to generate an economic boost, the sadness of the failure and the harm to the citizens of the area as well as the community as a whole is often far too underestimated.  Planners jumping the gun have an opportunity to cause great harm when there is a premature condemnation.

Camden must move on "blight"

Camden Post

State lawmakers gave Camden a legal tool five years ago to do something about this problem. The Abandoned Properties Rehabilitation Act of 2004 gives municipalities in the state the ability to wipe out or transfer tax liens or to use targeted eminent domain to take over blighted, empty buildings. The buildings can then be either torn down, or handed to a nonprofit organization interested in rehabilitating the structure.

This is a powerful tool. Yet the city is not using it nearly enough. The City Council authorized using the act soon after it passed in Trenton, but city administrators never followed through after that

There are times when a public use is simply to take out a blighted or blighting property.  Public use does include police power protections, simply protections to eradicate unsafe conditions for the general community.  Camden’s use of the appropriately delegated statute to eradicate blight is such an example.

Vital Infrastructure

 

DBusiness

Posted from DBusiness.com  on October 05, 2009

When Warren Mayor Jim Fouts called Detroit’s aging infrastructure a “ticking time bomb that’s ready to go off” earlier this year, he was referring to the state of Southeast Michigan’s water and sewer system; revealed as vulnerable and outdated in the wake of a challenging winter that induced 107 pipe breaks in Warren in one month alone. While Mayor Fouts was expressing an understandable frustration with the literal nuts and bolts of the less visible parts of the region’s infrastructure, his comments highlight an important point: dramatic civic improvements to Detroit’s urban infrastructure are a vital ingredient to both day-to-day stability and long-term economic prosperity. From bridges to airports to high-speed rail, Detroit is in need of an upgrade.

The availability of stimulus funding and the renewed national focus on the need to upgrade urban infrastructure presents Detroit – and cities like it – with a real opportunity to make headway on the kind of game-changing projects that can have a significant impact on the city’s fortunes. Large-scale urban infrastructure improvements like those that have been proposed (and some that are already in the works) can facilitate trade, improve transportation and connectivity, and make a lasting improvement to the quality of life for citizens and area businesses alike. Large-scale infrastructure projects are often politically and logistically complex, as the necessities of construction often require restructuring of neighborhoods and, at times, the government exercising the right to eminent domain. Along with political and business leaders, eminent domain attorneys are at the forefront of these issues; often forced to defend themselves and their clients a second time in the court of public opinion and refute the common misperception that they want condemnations to occur. The unavoidable fact is that projects that are ambitious enough in size and scope to make a real regional difference are inherently complex; space constraints mean that the process of designing and executing a large project in the midst of an urban environment is virtually impossible to do without making some strategic short-term sacrifices in the name of long-term gain for the city as a whole. Striking that balance and protecting the individual rights of businesses and private citizens, while understanding the value of legitimate and important civic improvements, is critical. And as most informed observers realize, the value of these projects to Greater Detroit and Southeast Michigan would be nearly incalculable.

The Detroit Regional Chamber leads the chorus from local businesses, government groups, non-profit organizations and private citizens who understand that, for Detroit, it is critically important to remain competitive in the national and global marketplace, and that upgrading transportation infrastructure is the best way to do that. A report released earlier this year by John Austin, Director of the Great Lakes Economic Initiative and a senior fellow at the Brookings Institution, supports the view that the region’s border transportation infrastructure is in dire straits. The report reinforced the notion that 21st century infrastructure is a prerequisite if Detroit hopes to become a competitive participant in the global economy, and compared The Motor City’s existing infrastructure unfavorably with the high-speed rail and new bridges, roads and transit upgrades in cities cities like London, Paris and China. As Austin explained to the Michigan Business Review earlier this year: “There's no reason why we can't and shouldn't have a high-speed rail interconnector between Toronto, Detroit and Chicago to link our economies and allow, in addition to this auto supply and manufacturing supply chain, which is highly integrated...the ability for venture capitalists and researchers and medical technologists and financiers to work together across these boundaries...And that needs to be accomplished by the infrastructure.”

High-speed rail is just one piece of the infrastructure puzzle, however. Pulling Southeast Michigan out of its economic doldrums will require a multifaceted long-term commitment to improving transportation infrastructure and upgrading facilities on the U.S.-Canadian border. While a rapid transit system for the city of Detroit may be some way off, resolving the political and economic disputes over the competing publicly and privately funded bridge proposals and executing a span across the Detroit River that is worthy of the city’s past and a bellwether indicator for its future will not only be a big step toward improving international trade and commerce, but will also have a vitalizing impact on Southwest Detroit. In addition, adding a new parallel runway to Detroit Metropolitan Airport will help guarantee that DTW remains a competitive hub for international airport traffic.

All of these projects will require funding, as well as political will, and all demand a combination of private enterprise, public support and civic ambition to have any chance of success. But for the City of Detroit, that success may make the difference between a future of economic prosperity and a future as a second-tier city. As Southeast Michigan moves toward that future, it will be up to experienced condemnation attorneys to ensure that the City of Detroit fulfills its obligations and responsibilities toward private citizens, while educating and informing the public about the benefits of infrastructure improvements. Land acquisition costs for the projects in the pipeline for Detroit are fractionally tiny compared to the development costs, and these particular projects would not require a particularly large condemnation component. Faced with a future where public transportation needs, electric and utility grid expansion, and petroleum and natural gas storage and supply infrastructure will continue to emerge as hot-button issues, the field of condemnation and eminent domain law will remain not only relevant, but pivotal. And while a handful of business and property owners faced with property seizure or condemnation may encounter some challenges in the near term, the boost from more construction jobs will be a much-needed economic bump for Detroit, and every business and citizen of the city and the region will ultimately benefit in the long run from these sorely needed urban and transportation infrastructure improvements.

Posted from DBusiness.com  on October 05, 2009

 

Schizophrenic problems with water: Does government really want to condemn?

Cincinnati.com

From Northern Kentucky to Cincinnati's northern suburbs, more than 230,000 homes and businesses get their water from Greater Cincinnati Water Works.

But this fall, a change that could affect the future of the utility, worth nearly half a billion dollars, is up for a vote - but only by Cincinnati residents.

The city wants to spin off the 170-year-old system, which provides water to 85 percent of Hamilton County as well as to 50 other jurisdictions, into a regional water district. The district would pay the city back for the next 75 years.

Water districts have the power, thanks to state law, to levy taxes and use eminent domain. Their revenue also can be used for other government operations, while the city utility's currently can't.

City Manager Milton Dohoney also says more and better access to water attracts economic development - and the more new customers a district recruits, the less water could cost because the price would be borne by more billpayers.  

 

While communities such as Nashua, New Hampshire with Pennichuck Water, attempt to acquire their private water utilities, others seek to semi-privatize in the form setting up “Commissions” to control water activity.  With these commissions, there is  great opportunity to fulfill patronage needs.  Further, the actions of the Commission will likely be far less transparent or responsive to the community will.  The Commissions all too often think they know more than the facility users and simply do not respond.  Ask your friends in the know, how much the appointed road commissions listen to the community.

 

Big surprise: Interference with use of parcel near an airport

Highline Times

Cutts told lawmakers the city's station area plan could generate an additional $2.1 million a year in city revenue and create more than 2,700 jobs.

The city plans include a 1,000-space public parking garage on the Cassan property.

In his testimony, Cassan sought to counter claims that the Cassans are risk adverse and lack development experience.

"We are not risk adverse. But we are not imprudent," Cassan said. "Where have the Staff been while Washington Mutual collapsed? While Wall Street imploded? And while the ability of developers to obtain capital and loans have gone into deep-freeze?"

Cassan added that that he and his wife put together a Mercer Island mixed-use development that won an award as best mid-rise development of the year.

Deputy Mayor Gene Fisher said he was conflicted about his vote but he wanted to arm the staff with the necessary tools to go forward with economic development.

Councilman Tony Anderson was the only lawmaker to vote against the condemnation. Councilwoman Terry Anderson was absent.

Tony Anderson urged the council to delay action until after the November general election when "the face of the council will become more clear." 

What a surprise!  The Airport Authority knows more about what an owner should do with a property than the owner. Sea Tac is in for a real experience on highest and best use and the notion of private land use, even around an airport facility

Rare Suit by a Community Against Its Eminent Domain Counsel

Green Bay Press Gazette

The city of Green Bay has filed suit against a lawyer who advised it in 2003 during the city's condemnation proceedings with the old Younkers building.
The city claims that Benjamin Southwick of Richland Center failed to correct an appraisal error that led to a $6.4 million judgment against the city and in favor of Wisconsin Mall Properties, the owner of the building.


It is close to never that a community will sue its lawyer for malpractice.  First, there is some precedent which holds that a community that takes land is sophisticated enough that it should have been aware of the mistake (slightly counterintuitive, I guess).  Second, very few communities will admit that it could have made the mistake of hiring the wrong lawyer to handle the condemnation.  After all, we all know our governmental agencies are omniscient.

Natural gas firm favored in ruling on south Sacramento storage

Sacramento Bee

Sacramento Natural Gas Storage has gained ground in its bid to store billions of cubic feet of natural gas beneath a south Sacramento neighborhood.

An administrative law judge for the California Public Utilities Commission ruled Monday that complaints that the company had misled the public and the agency earlier this year were without merit and will not be investigated.

The decision stems from a July complaint by the state PUC's public safety arm, which had urged the regulator to fine the company $80,000 for four separate rule violations.

Sometimes, owners become so emotionally charged when they lose their land that they see ‘demons’, which really do not exist. The Sacramento acquisition is such a situation. The owners may be right. If so, they should have their day in court. Thus far, they are on the losing side of a very divisive situation.

Opening nears Sullivan County Mine

WTHITV

Sullivan County resident Jim Taylor said the amount of money he received is not enough when the railroad claimed eminent domain, dividing his farmland into two parts. Plus, he is upset about the detour needed to get to the cemetery because of closing County Road 350 South.

"At best it's suitable for a pickup truck," said Taylor. "Take a hearse down that and a bunch of cars and the dust and the rattling from the cars, it's not acceptable." 

Nothing can be more destructive to a farm operation than being split.  Between the loss of economies of scale, drainage, and increased expenses, what looks like  a simple damage claim to a condemning agency may mean the total loss of the operation for the owner.

The Russians are coming, the Russians are coming

New York Post

The Atlantic Yards opposition group Develop Don't Destroy Brooklyn said this appears to be yet "one more deception from the untrustworthy developer," who for years, and as recently as earlier this month, said the team was not for sale.

“The only reason Ratner would make this deal is because he is in dire financial trouble. If Ratner has to go overseas to get major funding for the arena, how on earth is he going to finance the rest of the project,” said Develop Don’t’ Destroy Brooklyn spokesman Daniel Goldstein.

“Eminent domain abuse and massive taxpayer subsidies to enrich a Russian oligarch and modernize the Russian basketball system—is that what Bloomberg, Paterson, Schumer and Markowitz are all about? They’ve got to be kidding. And now that Prokohorov has a big foot in the door, who will really be running the beleaguered Atlantic Yards project show?”

But Mayor Bloomberg hailed the deal.

“It goes to show you how much confidence there is in how New York City is being positioned to come through the downturn stronger than ever, and in the future of Brooklyn," he said.

"Most of us remember when Brooklyn garnering this kind of international investment would have been hard to imagine. Today, it’s not so surprising, and it will help ensure the project – enormously important for Brooklyn and the City – moves forward."

Prokhorov, who currently owns a share in the Russian basketball team CSKA, was ranked as the country's richest man in the Russian edition of Forbes, with an estimated fortune of $9.5 billion. He has weathered the global economic crisis better than many of his wealthy compatriots by cashing out of some lucrative assets before the downturn battered commodity markets last year.

So a super duper wealthy guy shows up?  Did he get all these 95 Big Ones not learning how to collaborate with Big Brother?  You think the guy is a little mashuganah (for those outside New York this means “crazy’)?  I do not think so.  He is going to get all the help he needs to get the project completed.  Moreover, he moves some of this wealth to American Dollars….still a reasonably conservative investment.  So do not be shocked that the Russians are coming.

Kelo allows this project unless the New York Court of Appeals rejects it.  If the NY Court of Appeals rejects the private\pubic acquisition process, do not be surprised if it applies the change in a prospective fashion.

McKee's Northside Redevelopment

 

St. Louis Business Journal

The St. Louis Tax Increment Financing Commission will meet at 6 p.m. in room 208 of City Hall, 1200 Market St., to hold a public hearing for McKee’s NorthSide plan, dubbed “NorthSide Regeneration” in public documents. The plan calls for $8.1 billion in development in several phases for land west of downtown and on the city’s north side. 

The McKee project may not contemplate eminent domain as likely, but it certainly should consider dealing with inverse condemnation claims from businesses and residents in the area, which are contemplated for redevelopment.  Mckee and the City are trying to keep Robert Denlow and Paul Henry with full time employment through 2020.

 

 

Back for a second defeat, Pennsylvania Township Keeps on

 

San Gabriel Valley

In asking the judge to nullify the land-use appeals, the township argued that the family lost ownership interest in the property when the county tried to use eminent domain in November 2005, according to court papers.

Uhler disagreed in his ruling, saying possession of the property was never physically relinquished. In addition, the settlement agreement confirmed that the Kohr family did not lose interest in the property as a landowner.  

Lower Windsor Township has just lost an eminent domain case that spanned at least five years.  Now, after being beaten up once, it is revving itself for another defeat.  Land does not have to be ‘physically taken’ for the property to be lost.  This rule goes back to the 19th Century US Supreme Court case of Pumpelly v. Green Bay.  Do they think the family that won the $23-million condemnation verdict ran out of money?

 

Fallston Residents Oppose Pipeline

Baltimore Sun

Several Harford County residents are protesting a proposed gas pipeline that would run beneath their land by refusing to allow environmental surveyors hired by a natural gas company onto their properties.

"This pipeline might be coming, but I am not going to help them," said Lisa Schneider of Fallston.

As a condition of its approval of the project, the Federal Energy Regulatory Commission required AES, the Virginia company planning to run an 88-mile pipeline through Maryland, to conduct an environmental survey to locate endangered species along its path.

AES hired Environmental Solutions & Innovations Inc., a Cincinnati company, to survey the Fallston area for any Indiana bats, which have been on the endangered species list since 1967. AES sent registered letters to residents who live within 50 feet of the construction right-of-way and requested access to their properties, claiming it "has eminent domain authority" to conduct its surveys even without their consent.  

The statutes in most states allow an agency to seek entry to investigate a potential area for a future eminent domain acquisition through a court order.  However, if there is no statute allowing the entry, the agency seeking to enter for a proposed condemnation will not have the authority to enter.  Further, where there is a statutory provision, the owner who has suffered damage by the entry has a right to be compensated for all damage.

In almost all jurisdictions, an environmental assessment or an environmental impact statement is required.

Finally, approval by FERC or the state public service commission is generally mandatory prior to filing.

Competition for O'Hare?

DC Velocity

State and county officials are banking on continuing growth in commerce and population—Will County is Illinois' fastest-growing county—as well as the multimodal nature of the project to carry the day. They also point to the success of Rockford, Ill., about 70 miles from Chicago, where UPS operates a thriving regional air-cargo facility. Rockford demonstrates that the greater Chicago market is big enough for more than one cargo airport, officials say.

The South Suburban project is still in the early stages. According to Shea of IDOT, the state has purchased roughly half the land needed to construct the first runway and terminal. It has also begun condemnation proceedings to acquire raw land for further expansion. The state has started filing the necessary paperwork with the Federal Aviation Administration and has solicited the support of Transportation Secretary Ray LaHood, a former Illinois congressman.

Shea declined to specify a target date for completion   

Generally, a public body uses eminent domain to acquire necessary property for a public project.  Apparently, Illinois has reversed this procedure.  They have bought half the land for a new Peotone airport and filed the first three condemnation cases last month. However, according to IDOT, "the state has started filing the necessary paperwork with the FAA."

 

What happens if the FAA doesn't approve it?  The owners who have hired Bill Ryan will have to wait and see.

Is Minnesota Next to Stop Takings for Economic Development?

Three businesses affected, U-Haul Co. of Minnesota, Larson’s Automotive Repair Services and Competition Engines Inc., objected to the condemnation because it wasn’t supported by findings of public purpose or necessity and that the city’s use of the “quick-take” procedure was improper.

The city won the first legal round in the case, but the Minnesota Court of Appeals found in favor of the businesses. Eagan petitioned the Supreme Court for a review, which was granted late last month. The Supreme Court didn't immediately set a date and time for a hearing.

Eagan Mayor Mike Maguire said the city decided to appeal because it was concerned about the precedent that would be set if the most recent ruling was allowed to stand.  Twin Cities Business Journal, September 11, 2009

Minnesota is traveling a road now starting to be well taken.  An owner is disenchanted with an economic development forced acquisition of his land, so the owner challenges the condemnation.  The process goes through the courts.  When the Supreme Court of the jurisdiction rules favorably, an unfair practice ends in the jurisdiction (State).  If the agency seeking eminent domain succeeds in the eminent domain procedure, owners seek legislative protection.  If still unsuccessful in obtaining legislative relief, where available, the citizens will look to referenda barring the use of eminent domain for economic development.

Airport issues with Solbergs

Hunterdown County Democrat

At last night's committee meeting, Don Baldwin asked, "When is enough, enough?" He said officials have "squandered literally millions of dollars" in legal fees in the battle with the Sol bergs. "When is the bleeding going to stop? When will the committee reduce its losses -- or more correctly our losses... When will fiscal sanity be restored?"

The comments are in the wake of last month's opinion from the Superior Court Appellate Division about the township's efforts to condemn and acquire the land surrounding Solberg Airport and acquire development rights to the airport itself. The opinion reverses that of a trial judge and says that only a trial can resolve the issues in the dispute.

The court also sided with the Solbergs over its dispute with the township over property taxes. It overturned a previous court decision to allow the township to withdraw money from a trust fund to pay taxes it said were owed on the property after the date it acted to take the property. "Solberg had no responsibility for the taxes," the court wrote.

But at this week's meeting, the Township Committee voted to ratify is decision to appeal the case to the state Supreme Court. Because the three-judge Appellate opinion was unanimous, the Supreme Court is not required to accept the case for review.

When local governments lose condemnation actions because they do not have the statutory authority to take, the first thing they do is yell, “Appeal,” as if some golden wand will finally give them the authority they know they do not have.  That is where the community is going with the Solberg Airport eminent domain proceeding. 

 

This case sounds like the attempted acquisition of the Grosse Ile Bridge between Grosse Ile Township and Riverview in Michigan.  The Township, by multiples, added to the expense by forcing the issue through a Supreme Court decision, losing every step of the way.

Philadelphia Airport Expansion Problems

 

Delco Times

Questions of jurisdiction are holding up a Tinicum lawsuit filed last May in the Delaware County Common Pleas Court seeking a declaratory judgment on an 84-year-old statute that could keep Philadelphia from extending its airport further into the township.

A proposed capacity enhancement plan at Philadelphia International Airport could displace at least 72 residences and 3,300 jobs from Tinicum, according to a draft environmental impact statement from the Federal Aviation Administration.

In a joint filing with the county, Tinicum asked for a determination on the validity of a 1925 statute that provides first-class cities the authority to acquire lands for airports and landing fields outside their borders only “with the consent of the local authorities where such land is situated.”

A previous agreement between the township and the city required Philadelphia to get approval from commissioners before buying land in Tinicum, but that pact expired in 2007 and the two sides have been unable to come to terms on a new agreement.

Following the determination filing, Philadelphia filed a motion to  move the suit to the U.S. District Court for the Eastern District of Pennsylvania.

As acting Airport Director Mark Gale explained, the CEP was developed under federal guidelines laid out in the Vision 100-Century of Aviation Reauthorization Act of 2003 and, therefore, should come under federal jurisdiction. 

The local authorities have it right on the delegation issue.  Without the local approval, the city cannot take land outside the community limits under the statutory delegation.  However, the Aviation Reauthorization Act may have provided the city with a separate and independent basis by which to condemn.  If the Act did not specifically provide the power, the City will shortly be seeking help from the state legislature. This assumes the Pennsylvania Constitution does not otherwise limit the extraterritorial acquisition.

 

The Classic: Environment v. Development

Billings Gazette

The Montana Land Board is to decide on Sept. 21 whether to accept an appraisal of the state-owned Otter Creek coal tracts near Ashland. If the Land Board accepts the appraisal, it will set in motion the process for leasing Otter Creek coal. While this may benefit coal speculators, it will impose numerous serious economic, social and environmental costs on Montana.

A recent economic study by Dr. Tom Power of the University of Montana found the Norwest Corp. appraisal fundamentally flawed. Dr. Power calls on the state to conduct a new appraisal because the current one is "incomplete, lacks foundation, contains major conceptual and factual errors, and has been outdated by changed economic circumstances." 

These mixed land use\eminent domain\environmental issues in the Mountain States are fascinating.  While we need to develop our public resources, we also need to protect our environment.  The demand for resources must be provide a long-term perspective. Likewise, our environmental concerns will be relevant long after this writer and any reader is alive.

Court Determines Governmental Decision Making Process Is Unacceptable in Pinon Canyon

U.S. District Judge Richard Matsch in Denver issued a ruling Tuesday overturning a 2007 environmental analysis of stepping up training at its Pinon Canyon Maneuver Site. The ruling says the Army didn’t adequately assess the environmental impacts of the increased intensity and duration of training.

The ruling comes in a challenge by area ranchers who argued that the military didn’t seriously consider the effects of the plan.

The ranchers, members of the group Not 1 More Acre!, also oppose the Army’s proposal to expand the 370-square-mile training site to 525 square miles. Colorado legislators passed a law this year barring the selling or leasing of state-owned land for the expansion.

But the environmental impact statement addressed just the proposed increase in training and facilities at the existing site. Matsch said the analysis didn’t adequately explore the potential impacts, making the Army’s decision “arbitrary and capricious.”  Army News, September 9, 2009             

This opinion should be a fascinating read for those interested in challenging the government environmental assessment process.  Rarely can one find a court making a determination that the government’s decision is “arbitrary and capricious”.  It sure would be nice if government agencies were held to this standard when deciding to acquire property in eminent domain proceedings!

Restaurant owner: Mt. Prospect won't push me out

Daily Herald

Never without his U.S. Marines baseball cap, Tod Curtis is a walking, talking symbol of old downtown Mount Prospect.

He believes Mount Prospect village officials have been conspiring to drive him out of business for years, and want him out now, in particular, to proceed with a downtown development without him.

In response, he is pursuing a civil racketeering lawsuit against Mayor Irvana Wilks, several municipal employees and a local developer, alleging they have formed an "ongoing enterprise and scheme" for nearly a decade.

"The RICO (Racketeer Influenced and Corrupt Organizations Act) statute was meant to uncover serious felony conduct, normally for criminal prosecution," said Len Cavise, a DePaul University law professor.

According to Curtis, village officials "employed endless harassing inspections of the property."

In short, village officials want Curtis out of Mount Prospect, he believes.

One of those actions occurred on April 11, 2008, after the village shut down the Ye Olde Town Inn for code violations related to structural, plumbing and electrical problems.

Curtis said village officials want him out of the way to make room for a $40 million town center project that the board approved in May.

The development area is locally called the "small triangle" and is bounded by Northwest Highway, Route 83 and Willie Street.

For the past two years, the village has been trying to acquire Curtis' land through eminent domain. Eventually the acquisition could end up in a place both Curtis and village officials are familiar with - court.

"It's currently under review by a judge, but it could end up going before a jury who will decide the value of the property," Cooney said. "That wouldn't happen until late this year."

Curtis, meanwhile, has his own development plan for the area that he calls the Gateway Centre of Mount Prospect.

Cooney said village officials looked over the plans when Curtis submitted them last year and "responded with a long list of comments."

It sounds like a unique situation in which a property owner attempted to use RICO to try and save his property from an improper taking. Apparently, trial court denied the owner's traverse (taking challenge).

Both parties are now having the property appraised. With Bill Ryan now the owner's lawyer, there is a good likelihood fair market value will finally be offerred.

 

Contamination in the condemnation process

NJ.com

Last week, a state Superior Court judge in Union County directed Getty Petroleum Marketing Inc. and Power Test Realty, two New York companies, to pay the state more than $866,932 for the cleanup, which included removing eight underground fuel-storage tanks that had oozed benzene, xylene, methyl tertiary ether and ethyl benzene into the soil for years, according to state Attorney General Anne Milgram.

"Substantial public dollars were invested in the clean-up of this property, and it's only fair that the responsible parties ... should pay," Milgram said in a press release. To clean the property, state crews removed 6,300 cubic yards of soil.

Arguing the companies had been "unjustly enriched" after receiving a fair market value for their polluted properties, the state filed the suit in 2006 seeking compensation.

The Schools Development Authority acquired the Newark Avenue property in October 2003 through eminent domain, only to have tests later reveal the presence of numerous hazardous substances in the soil, according to the Attorney General's Office. 

This is a fine example of why an owner must be extremely careful in drafting any sales documents arising out of a potential eminent domain proceeding.  It also reflects the vexing issues of dealing with contamination in the condemnation process when land is taken for a public use.

Valuation in Flood Areas

 

Standard Examiner

"Davis County changed the parcel of land to 5.3 acres, and my taxes increased," Jenkins said.

He said he became the land's owner in 1980 and it was zoned R-2, which meant he could have up to 10 units per acre if he developed the property.

His proposed development would have 52 units built in the area.

But city officials said 52 units is not a realistic number based on the pond and the irregular shape of the dry land.

Adam Lenhard, the city's community development director, determined the most any developer could build on the area is four duplex lots or a total of eight units.

Mayor Don Wood testified the city had set aside $50,000 to clean up the pond area. Most of that money is gone.

"Yes, it was for the development of a park," Wood said. "It was used for clearing the area, for a parking lot and to make it more visible to decrease criminal behavior in the area."

Jenkins asked the mayor where the water in Steed Pond comes from. 

Water rights and flood controls create havoc with planning, especially in areas where there is a dearth.  Too often planning is emaciated by these problems, however the owners of the land are damaged the worst via the eminent domain (condemnation) process.

 

Railroad drops condemnation suits

Wyoming Business Review

CHEYENNE — Nineteen landowners in Converse, Weston, Campbell and Niobrara counties can relax. Lawsuits filed by the Dakota, Minnesota & Eastern Railroad Corp. (DM&E) to condemn parts of their property as rights of way for a new coal-hauling train line were dropped yesterday. DM&E has been working on a plan to ship Powder River Basin coal across South Dakota and Minnesota for at least fifteen years. The new line would have extended 278 miles and cost $6 billion. Some of the landowners in the new line’s path resisted the plans, so the railroad company filed the condemnation lawsuits in 2007. DM&E was then acquired by Canadian Pacific, which assumed control in October of 2008. When DM&E’s attorneys filed a notice of dismissal in U.S. District Court in Cheyenne yesterday, they noted “significant changes in the economic climate” as well as a tightening of the supply of available financing as reasons behind the suits’ dismissal.

The owners are potentially stuck for the fees in defending themselves from a needless take under Federal Court Rules.  It will be based, at least in part, on how FRCP 70.1 is used.  Have no fear that the owners are not done!   Good luck to them.


 

Noise Mitigation in Warwick

Warwick Beacon

RIAC’s most recent proposal to expand the main runway to 8,700 feet, while not the city’s preferred option, has been the most reasonable to date. However, contrary to their assertions, RIAC and the FAA have continued to minimize and marginalize Warwick’s very real, reasonable and legitimate concerns. To compound this issue, RIAC has publicly misrepresented through the media and at several community meetings that it is close to an agreement with the city regarding issues related to the 8,700 proposal.

The following are included among the issues that RIAC and the FAA have failed to address:

Home acquisitions: RIAC continues to proclaim that only 11 properties will need to be acquired as part of the 8,700-foot proposal, when, in reality, this figure represents only the mandatory condemnation necessary for the Main Avenue roadway relocation. In fact, in excess of 220 homes will be targeted for takings for runway safety and noise purposes under FAA standards. The fact of the matter is that the actual loss of homes is far greater than that claimed by RIAC officials.

This is compounded by the fact that RIAC is still acquiring homes under previous programs that began some six years ago, leaving residents in the dark as to when their homes will be taken and unwilling and unable to plan for ordinary home expenses and repairs. In addition, persons whose homes were slated for taking have had to remain exposed to the continuous, deleterious effects of the airport’s operational activities. Also troubling is that a disproportionate number of the homes impacted (91 percent) by the runway expansion are considered affordable and RIAC has no plan to replace this finite housing stock.

This is a well thought article by the Mayor of the City of Warwick. The City of Warwick apparently surrounds the main airport in Rhode Island.  The problems of noise mitigation, eminent domain (condemnation), affordable housing for the residents and fair treatment of businesses is of paramount import.

A Monument Waste in Florida

Broward News

The Broward County School Board has driven the school district into near-bankruptcy by overbuilding by tens of thousands of seats that now sit empty. Part of the reason is that every board member has had a pet project that's added to the hundreds of millions of dollars misspent.

Board Member Jennifer Gottlieb's monument to waste and excess, for instance, is something called "Elementary School C."

The school is being built in central Hollywood at a total cost to taxpayers of more than $25 million — at a time of teachers' layoffs and a debt-ridden finance ledger. It will add 834 classroom seats to a school district that already has more than 25,000 empty seats and is expected to have about 35,000 by 2012.

To obtain the land to build this unnecessary school, the board purchased 54 neighborhood homes for about $6.3 million, uprooting dozens of families and forcing nine households out of the neighborhood through the expensive use of eminent domain.

Well, I thought only Northern cities waste money on building far more than necessary, condemning when not necessary and using the democratic process of elections to abuse the underlying tenet of fiduciary obligation to the citizens who elected the officials.

Wal-Mart on the Prowl

Business Journal

Wal-Mart is one of several big-box stores that Gary Rappaport, CEO of The Rappaport Cos., says have expressed interest in Skyland, the Southeast D.C. shopping center he has long planned to overhaul with William C. Smith & Co. but which is mired in an eminent domain battle.

“Many of the larger big boxes have been interested in the site over the years, and it comes to be a decision based on who is ready to step up at the right time,” Rappaport said.

But with Wal-Mart, timing and cost numbers are only part of the battle. Even with District residents looking for low-cost options, Wal-Mart would likely spark concern from labor leaders.

The developer is not ‘mired’ in an eminent domain case.  Rather, the developer has chosen to profit off of individual owners by utilizing the legal process and availably of condemnation to acquire the rights of ownership of the property owners who would otherwise be free to market their properties to the Wal Marts of the world.                                         

St. Louis Eminent Domain Plan

Fort Mill Times

A group called the North Side Community Benefits Alliance scheduled a meeting at 6:30 p.m. Thursday at the Shining Light Pentecostal Church. They’ll discuss protections against eminent domain, a government power to take private property for a public purpose.

Developer Paul McKee has submitted a multibillion-dollar proposal for a redevelopment project on the city’s north side. McKee has said he would pursue eminent domain only where it would lead to substantial job creation.  AP, August 20, 2009           

The St. Louis, MO private developer plan, to tear up square miles of the City via eminent domain, is suspect.  On the one hand there is the claimed need for rehabilitation of an alleged deteriorated portion of the City of St. Louis.  Yet, letting the onus of condemnation to sit out there for years raises substantial questions of whether Due Process and payment of Just Compensation are being paid.

Limitations on the freedom of speech

 

Times Union

In October 2008, Royall sued Main and her publisher Encounter Books), seeking monetary damages and a ban on further production and distribution of the book. He also sued the Galveston newspaper that reviewed the book and the reviewer. A judge dismissed, on jurisdictional grounds, Royall's suit against Richard Epstein, professor of law at the University of Chicago and New York University, whose offense was a dust-jacket endorsement of the book as a report on an "unholy alliance" between government and a private interest.

Royall's suit charging Main with defamation is, her lawyers document, riddled with mischaracterizations of what Main writes and about whom she writes it, and ignores long-established criteria of defamation law, which holds that a statement is not actionable as defamatory if the speaker obviously is expressing a subjective view or an interpretation, theory, conjecture or surmise.

Indeed, so slapdash are Royall's accusations against Main that his suit seems to reflect nothing more substantial than his dislike of her opinions and those of people she accurately quotes. It seems intended to chill commentary on eminent domain abuse by exposing commentators to the steep costs of deflecting even frivolous litigation……….

The court should be cognizant of the attacks on property rights that its Kelo decision incited. And on Sept. 9 it should remember the increasing resort to restrictions of speech. McCain-Feingold is both a symptom and an encouragement of such restrictions.

George Will got it right, at least in part.  I am not convinced that it is the lobbying limitations legislated that is the crux of the problem.  However, a limitation on the freedom of speech on the Kelo topic in local media would assure us all the prospect of the demise of our personal Fundamental Freedoms and rights of secured property ownership.

Another Low Ball Offer

NJ.com

LOGAN TWP. Following unsuccessful negotiations to buy 872 acres of land along the Delaware River here, Gloucester County officials will try to take the property through eminent domain.

The county offered American Atlantic Company $4 million for the waterfront property just north of the Commodore Barry Bridge, land currently used to dump dredging spoils scooped up from the bottom of the Delaware River during routine maintenance.

 

This is a purchaser who has no understanding of the value of waterway property.  Simply because spoils are at the site may not diminish the value of the location.  This Township should either be ready to pay fair market value or quit wasting everyones’ time.  This law office went through a similar situation with the Detroit Marine Terminal taking a few years ago, so we have an understanding of the difficulty of appropriately valuing property on navigable waterways.  The citizens of Logan Township should be concerned.

New York Court of Appeals Opportunity to End Eminent Domain Abuse

New York Daily News

In recent years, New York has earned the dubious distinction of being one of thenation's worst abusers of eminent domain. The Empire State Development Corp. (ESDC) and localities have approved condemnation of property for a huge range of wealthy private entities, including the New York Stock Exchange, Costco, Stop & Shop and Columbia University. The latest outrage is the effort by the Empire State Development Corp. to take homes and other private property for Bruce Ratner's Atlantic Yards stadium development.

There are owners who don't want to sell and residents who don't want to move, but the ESDC has used the power of eminent domain to force everyone to leave. The government is supposed to pay owners "just compensation" for the property, but the owner has no choice: not about whether to keep property and not about how much to sell it for.

Not only is this un-American, it is unconstitutional.

There may, however, finally be light at the end of a very dark tunnel. In October, the New York Court of Appeals, the state's highest court, will hear the legal challenge of Brooklyn residents and businesses looking to block the use of eminent domain to build Atlantic Yards.

It has been more than a generation since the state's highest court has interpreted the New York Constitution's provision that property may be taken only for "public use." It's time for the court to take a long, hard look - before more damage is done.

The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent domain for potential job creation, increased taxes or general economic development does not violate the U.S. Constitution. In the firestorm of outrage that followed, 43 states changed their laws to make eminent domain for private development either more difficult or impossible.

New York remains one of only seven that have not.

 

 

The article is well thought out and worthwhile reading.  The problem remains that many courts look to the electorate to change (or favorably interpret) the Public Use definition.  Because of the difficulty of the referenda process and the close allegiance between legislators, local officials, and local developers, New York has a real problem in obtaining change despite the overwhelming public support for a limitation on condemnations of viable private properties.

Property owners refuse to leave

NJ.com

Some business owners in Cedar Rapids' flood plain say they've received a worse deal than homeowners: They were offered only the value of their land. And if they stay, there's no guarantee the Army Corps won't remove electric, water and sewer lines from under the levee to prevent them from undermining the system.

Jason Beauregard, 34, thought he was getting a bargain when he paid $350,000 for commercial property near the river after the flood.

"I went to the city, and I was told that not only would it be not a problem, it would be beneficial for me to buy it," said Beauregard, who owns the Superior Services janitorial company. "If anything, they said it could turn into a decent investment."

He spent $70,000 cleaning and furnishing his office space and a 8,000-square-foot garage, but now the city is offering him about $95,000.

"If it's (a choice between) land value or being on the wet side of the wall, we're going to be on the wet side of the wall," Beauregard said. "I guess if that happens, we'll be cleaning up a flood every time."   Nigel Duara, AP, August 12, 2009

There is a risk when in the floodplain, the Corps of Engineers are arguing marketable property has no market whatsoever.  This is a harsh result for owners because owners should expect to be compensated fairly.

Premising FMV on assessed value

 

NJ.com

The city offered Ellis and his girlfriend the pre-flood assessed value of their home and land - about $86,000 - but subtracted about $25,000 the couple received in initial disaster assistance from FEMA.

"You can't get a house for $61,000 out here," Ellis said. "I would know. We looked at probably 100 (of them)."   By Nigel Dura, AP  August 12, 2009

Premising fair market value on assessed value is harmful to owners obtaining Just Compensation.   What is an owner to do when he gets a bill saying the property was under assessed?  “Appraise my property higher and tax me more?”    The floodplain takes are necessary, but not always fair.

 

Protecting Property Rights

Star Ledger

READINGTON -- A state appeals court today reversed a previous decision allowing Readington to exercise eminent domain over hundred of acres surrounding a Hunterdon County airport they wanted to preserve as open space.

The panel of three judges said the town's decision to condemn 625 acres surrounding Solberg Airport was suspect and substantially motivated by a desire to limit the facility's expansion. The case will now head to trial court.

The town raised $21.7 million through a bond ordinance in 2006 and filed for condemnation. But the Solberg family contested the proceeding in Superior Court. The family argued losing the land that surrounds the 102-acre parcel would threaten future operation and ultimately destroy the airport that dates from 1941.

This is a fine example of those who want to protect their valid private property ownership, when within the constitutional protections, can prevail over public desires of inappropriate land use controls.  The Solberg family and their counsel Laurence Orloff deserve a lot of credit for not giving up.

Property Rights in North Carolina

Gazette

The eminent domain restriction effort did make it to the floor of the House as the days in Raleigh were drawing longer and the temperature outside was rising. But that bill was sent back to committee and never got a floor vote.

 A parliamentary effort by one of the bill’s primary sponsors, Rep. Paul “Skip” Stam, R-Wake, to pull it out of committee and get a floor vote on the measure was blocked.

 Stam has pushed for an eminent domain constitutional amendment since the “Kelo” U.S. Supreme Court decision in 2005. In that case, the nation’s high court said that the U.S. Constitution’s eminent domain clause did not block a local government from using its powers to take private property and deeding it to another private property owner for economic development purposes.

 A few years ago, a study committee looked at the eminent domain issue. As a result of the study, lawmakers tightened up the state’s condemnation statutes but didn’t amend the N.C. Constitution to protect property owners.

The citizens only have the choice of the ballot box to obtain a constitutional amendment to limit takings to traditional public uses.  The route is difficult and different in every jurisdiction.  In some states, such as NY and CT, it is well near impossible.

APSU granted property

The Leaf Chronicle

The 1.35 acres of downtown property has been a point of contention between APSU and property owner University Landing Partners for a long time.

APSU has now paid $530,000 for the property that University Landing Partners had asked $1.5 million for in the past, according to Mitch Robinson, the university's vice president of finance and administration.

But the recent decision does not end litigation, and it leaves the door open for more "fair market value" proceedings either through agreed settlement or possibly by jury.

"It is entirely possible we could end up paying more for that property," Robinson said Monday.

The court order gives legal possession of the property to the state for use by the Tennessee Board of Regents.

Nashville attorney Clark Tidwell is representing University Landing Partners.

"In my experience of more than 40 years of practice dealing with eminent domain cases, I've never had a case where a university filed for condemnation proceedings," Tidwell said.

Tidwell said federal agencies like TVA often file eminent domain cases, but universities are unusual.

"In Tennessee, it doesn't matter who the government entity is, whether a university or whoever, the right exists to take public property.

Clarksville Tennessee Leaf Chronicle, August 17, 2009

The issue is whether the university is an agency with the delegated power to condemn through enactment of the state legislature or the constitution of the State in which the property is located.  The taking clearly does not bar the owner in this situation from receiving fair market value under the Tennessee just compensation process.

Save one dollar and spend two

NJ.com

Freeholder Anthony Romano of Hoboken brought up the possibility of moving county workers out of the annex long enough to complete the needed upgrades _ once the building is acquired. Other freeholders and County Clerk Abraham Antun agreed that space was available in the nearby county Administration Building on Newark Avenue. Personnel would only be moved should any proposed construction require it. In modernizing the building's computer capabilities, it was noted that the freeholders' public meeting chambers may have to be reconfigured which would force the county governing body to hold sessions in the administration building.

The Board of Freeholders has been paying a lease of $1.08 million a year. By buying the annex, the annual cost to the county would be about $700,000, a $300,000 savings, according to officials. Part of the savings includes not having to pay $118,000 in annual property taxes to Jersey City, a part of the lease payments.

Panepinto could not be reached for comment.

 

The County wants to buy out its lease.  The value on a reasonable capitalization may be far more than the eleven million dollar estimated value.  And to think the government does not want to pay real estate taxes!

Judge orders DOT to pay more

News Times

Those valuations varied wildly -- $2.4 million to $4.1 million from the state's experts and $25 million to $29.1 million from Rock Acquisition's appraisers.

Rock Acquisition LP was represented by lawyers Jay Skelton of Fairfield and Bart Halloran of Farmington.

Skelton said it took 13 years from the day the eminent domain process started to the day of Sheedy's verdict. "We never doubted we would win the case," Skelton said. "The only question was what the award would be. We were very confident in our experts."

He said during the course of litigation, two internal DOT memos were discovered in which senior DOT employees recognized the value of the quarry at between $25 and $30 million.

In her decision, Sheedy said because the land's most favorable use would have been as a quarry, the central question in the case was how much the minerals on the property were worth.

She found that neither of the two experts retained by the state demonstrated "preparation, experience, or professional credentials to render a fair valuation," and further found that their testimony was "offered solely to minimize the quarry's value." Sheedy also found fault with the $25 million valuation offered by one of the Rock Acquisition witnesses, saying his methodology was "unreliable" and "beggars credulity."  Connecticut Post August 4, 2009.

It often takes true effort and years of patience to prove that, the methodology utilized by a governmental agency is simply wrong.  The great discovery process and a gutsy fair minded judge sure does help!  The problem in most jurisdictions is that the interest, which is paid, is simple rather than compound.

AEP - Transmission Routing

 

MSNBC

QUESTION: Can you give an update on whether there are any significant legal or litigation challenges to the line?

RESONSE: Mike Morris, AEP's chairman, president and CEO, "At the end of the day, there will only be, please don't put this in my backyard. ... But I don't think you're going to find any significant legal challenges that will delay any of that activity. Once you receive final authority from the (Federal Energy Regulatory Commission), which we have, and ultimate authority from the states and the alignments, then you move into an eminent domain world where the argument really gets down to what's my property worth, and there are long-standing methods to take care of that.

"But we are routing around the kinds of things that would cause some long-term delay. The day of getting your straightedge out and laying a transmission line out are long gone. We know how to avoid historic sites, environmentally sensitive areas, public areas where people don't want us to be. We learned a lot of lessons over a lot of years, but we are much better at routing transmission lines."   

AEP is one of the largest utilities in the Midwest, if not the country.   This is a frank analysis outlining two major concepts.  First, utilities like AEP are doing their best to acquire in the path of least resistance.  Second, once an owner provides the right of way, given the environmental constraints, the owner is likely to be visited by the next utility as well.

 

Pipelines, potential for more lines

The Columbian

The Federal Energy Regulatory Commission will hold public meetings this month on a proposed 119-mile natural gas pipeline that would run mostly parallel to an existing pipeline along the Washington side of the Columbia River Gorge.

The applicant, Williams Northwest Pipeline, says the Blue Bridge Pipeline is needed to meet increased demand for natural gas in western Washington markets.

"One of our major customers, Puget Sound Energy, was the driving force behind the project," said Michele Swaner, spokeswoman for the Salt Lake City-based pipeline company.

However, Williams Northwest recently scaled back the size of the project at Puget Sound Energy's request after the utility cited changing market conditions, she said.

The Federal Energy Regulatory Commission issued notice this week of its intent to prepare an environmental impact statement for the project. At hearings Aug. 11 in Goldendale and Aug. 12 in Stevenson, affected landowners, government agencies, Native American tribes, environmental groups and other interested parties will be invited to comment on what issues the EIS should address.

Michael Lang, conservation director for Friends of the Columbia Gorge, said an earlier version of the pipeline proposal raised significant environmental concerns, including the possibility that the national scenic area would be marred by "a permanent linear clear-cut."

Once the first line arrives, the potential for the ‘clear cut’ of parallel pipelines along with many more pipelines (and electric lines) expands.  The EIS issue is effectively done.  The path of least resistance exists.   

Cabarrus sues over pipeline project

Independent Tribune

But Hovanec explained why the city wants the pipeline. Monroe sells natural gas and is building the pipeline to connect to the Transcontinental Gas Pipeline in Mooresville. That pipeline runs from Texas to New York.

The pipeline will reduce the cost of natural gas for its customers by $18 per year once it is complete.

The pipeline also will allow Monroe to receive three times the amount of gas currently allowed by the Piedmont Natural Gas contract, allowing the city to expand its customer base.

Hovanec said the City of Monroe agreed to pay Midland $1.6 million upfront and then an ongoing fee based on the amount of natural gas that comes to Monroe.

"Originally, Monroe was to pay a higher ongoing fee and no upfront money, but Midland needed some funds for infrastructure updates, and we restructured the deal where they would get a large portion up front and a reduced rate on the back end when the gas starts to flow," Hovanec said. "From a long term perspective, Monroe comes out spending less money than if we had the higher rate all along."

This article deals with a number of issues, which vex many communities.  Is it fair to have one entity with the power to condemn move forward to expropriate for the benefit of another governmental entity?  Should the condemning authority utilize the eminent domain power in such a fashion so as to provide one community an advantage over others?

Virginia's Kelo invitation

Pilot Online

A circuit judge has cleared the way for the city's Redevelopment and Housing Authority to buy a handful of properties along Hampton Boulevard, agreeing with the agency that the area between 38th and 41st streets is still blighted.

Property owners there tried to block the authority from using eminent domain to take their land, saying redevelopment in recent years has improved the neighborhood so much that it no longer meets the state's definition of a troubled area.

On Friday, the property owners' attorney said he planned to appeal Norfolk Circuit Judge Louis A. Sherman's decision to the state Supreme Court.

"Ultimately, the Supreme Court gets to make the decision," attorney Joe Waldo said. "And we believe, ultimately, we'll prevail. They are essentially using the protection of outdated law to take property."  Virginia Pilot, July 25,2009

Mr. Waldo got this right.  The Virginia State Supreme Court will have to make individual decisions as to whether public use is for simple economic gain.  Virginia is ripe to accept the Kelo invitation to prohibit takes for economic gain within its jurisdiction.

O'Hare Modernization Act

Chicago Tribune

At issue is whether the state even has the power of eminent domain for the Peotone airport. Shea said the state was given that authority in 2003 when the O'Hare Modernization Act was signed into law. It included provisions to begin purchasing land in an area suitable for airport construction over the next 10 to 20 years.

A number of landowners have said the state has used the threat of eminent domain to encourage them to sell.

But, Shea said, all the land sales to this point have been voluntary.

Bill Ryan, an attorney representing several landowners, challenges that notion, claiming the reason the state has not invoked eminent domain is that it doesn't yet have the authority to use it. "Clearly land can be acquired for public airports, but the questions are, what land? How much land?"

  The writer of this Chicago Tribune article got it right……he found the best known lawyer on the topic, William Ryan of Chicago,  to note that the Authority may not have the jurisdiction to acquire by eminent domain.  Without a doubt the Illinois legislature will fix that in a hurry!    But holy smokes, then it will have to pay Just Compensation.

Railroad's right to land points to charter

TimesNews of North Carolina

The bill — which passed the House in May and sits before the Senate Judiciary Committee — would prepare the way for a light rail corridor, should the state choose to begin high-speed rail service. Light rail trains can’t run on the currently laid track.

Following a story about Gibsonville’s opposition to the proposed legislation, Albright e-mailed and left messages at the Times-News citing sections of the 1849 charter legislation he says gives the railroad until 1859 to complete work and to pay for any land it condemns along the track.

He also said the amount of the railroad’s right of way is limited, and probably to no more than 10 feet.

“The 1849 enabling legislation does not grant the railroad any right of way whatsoever. The legislation allows the railroad to purchase right of way from individual property owners and to condemn and pay for the property of individuals for depots, railroad work yards, hotels, etc., but even in those cases the railroad could not condemn more than two acres from any one property owner, specifically 200 feet by 400 feet of property,” Albright said in an e-mail.

Dick Ellis, an attorney with the N.C. Railroad Co., disputes Albright’s interpretation.

“I have the utmost respect for the Alamance County attorney, but I don’t know what he’s talking about,” Ellis said Tuesday. “In general, along its 317 miles of track, the charter gave the railroad a significant right of way and explained that the railroad always has the right to utilize the land for railroad purposes.”

 

Nothing is more difficult than seeking to limit specifically empowered uses of property in a society of changing technology.  The likely result is a court, which will be mired in a very precise reading of the original statute.  The court will determine what rights were originally contemplated under the delegation and then determine whether there was a statutory intent to imply greater powers in the future.  The reality is that North Carolina needs the right of way for modern trains, yet is not sure if the subject right of way is the right of way, which should be utilized.

Alleged Tax Benefit

 

Belleville News

JEFFERSON CITY, Mo. (AP) -- A group seeking to limit eminent domain is concerned that a legal appeal could make it harder to get the issue on Missouri's 2010 ballot.

Missouri Citizens for Property Rights is backing a pair of constitutional amendments that would restrict the condemnation of private property for redevelopment.

A judge ruled last month that the ballot summary prepared by Secretary of State Robin Carnahan for one of the amendments was "insufficient and unfair." This week, Carnahan appealed that decision.

The ruling also was appealed by the Missouri Municipal League, which wants the judiciary to make even greater changes to the ballot summary and financial estimate. 

Missouri citizens likely will only receive redress to their objections to the wide-open eminent domain process allowing for alleged tax benefits to local authorities. This is to the detriment of individual private owners through the legislative process.

 

Businesses Fight Blight

Chronicle Online

LORAIN — City officials may be checking into whether properties labeled blighted in a study done by a Cleveland consulting firm deserve the designation.

The blight study is part of the process the city is undergoing to create an urban renewal plan for the area along Broadway from East Erie Avenue along the Black River to about 12th Street.

The plan, if approved by council, would allow the city to qualify the area for tax incremental financing (TIF) — something municipalities do to redirect property taxes to a certain area to improve infrastructure in the interest of development.

Now that Kelo provides state law (in this case Ohio) to establish a ‘blight’ certification in order to redevelop an area, some local jurisdictions still have their chance at private redevelopment on the alleged basis that what is presently there is not good enough.

Damned if you do, damned if you don't!

Washington Chronicle

The Airport Board suggested the condemnation after 12 years of unsuccessful negotiations, during which it claims to have made offers well above market value for the property. With the approval of both jurisdictions, the pieces are in place for the airport board to take the land under eminent domain.

    Though approval has been granted, the situation could be resolved, said Roe. Landowner Johanna Remund, who is being represented by her son, Scheuber Road resident Wally Remund, has been presented with a final offer and has until the end of August to make a decision.

    Remund has not responded to multiple interview requests.

    Roe told the council that the condemnation approval was requested “just in case our talks fall apart with the property owner.” 
  

This article is a great example of "damned if you do, damned if you don't." If you say the wrong thing to the paper, you hurt your case.  If you stand mute, as illustrated in the article above, you look like a recalcitrant and vindictive, i.e., greedy property owner.  Possibly the owner just wanted to be left alone.  However, if needed for a public use this opportunity to be left alone may not be possible.   

 

This is agreement or condemnation!

 

AP

The Illinois Commerce Commission on Wednesday approved Calgary-based Enbridge Inc.'s application for the pipeline expected to run from the company's Pontiac terminal south to a pipeline hub near Patoka in Marion County.

At least for now, the commission turned down Enbridge's request for eminent domain authority, ruling the company should continue negotiating with landowners for easements for the pipeline. The ICC says Enbridge can ask to seek eminent domain if talks fail.

The July 10 AP article concludes that eminent domain is the available alternative used if the parties cannot arrive at an agreement without condemnation.

 

Gadsden Will PAY for a Landfill

Gadsden Times

Revenue from operating the transfer station then could be used to close the landfill properly.
But Simms and Turnbach said it is the commission’s legal position that the county is not responsible for closing the landfill.
Simms said Noble has told the commission he is interested in reopening the landfill.
Miles said his client is in negotiation with the commission concerning the property and has asked the commission not to begin condemnation proceedings.
He said they are trying to reach an agreement with the commission to have the landfill reopened but would not confirm Noble wants to reopen it.                   

 

Community leaders do not understand the value of landfills, even more so when the facilities have been closed.  The County Commission is about to be rudely awakened!  It would serve the community best to have an individual who understands the landfill licensing procedure.

Convention Center Glut

 

CHARLESTON, W.Va. (WSAZ)

The Clay Center for the Arts and Sciences, Appalachian Power Park, a new main library and an improved riverfront have dominated headlines over the past decade as improvements or proposed ideas to enhance the atmosphere of Charleston.

"The city needs a convention center," said one city councilman. "It will bring convention business, more money to the city and get more people spending money at hotels and restaurants."

Space is one of the big issues with the project.

"We need to update and expand the civic center to draw more regional conventions, but we need additional property to do that, such as the Beni Kedem and Fifth Quarter properties," one councilman said. "We need to expand it to be a full convention center with smaller rooms." WCAZ, Charleston, W.Va., 7\6\09

The plans for Charleston are a much-repeated ode in all too many communities.  “Give us a larger convention center, and then we will have more hotels and restaurants and downtown activities.”  However, the convention center simply becomes something similar to other centers in other communities or simply draws from other centers in the same State.  I am not high on centralized planning but building for non-business/ entertainment activity needs regional, if not state, planning. 

 

Intermodal Facilities

BLE.org

Martinez noted that about 400 acres are available near the preferred site for development of a business park, which could accommodate companies that would want to locate to New Market to take advantage of the railroad facility.

It would be Jefferson County's link to a system of rail lines and other interposal operations that Norfolk Southern is planning called the Crescent Corridor, Martinez said. The corridor would be a 2,500-mile route linking the Gulf Coast to New England with connections to the Port of Virginia and to the West Coast via a route to Chicago.

Martinez cited studies by the University of Tennessee and by Insight Research Analysis, which he said were done independently, that calculated the operation's economic benefits to New Market and the region. Insight Research estimated 1,801 jobs would be added in New Market by 2020 and the UT study predicted 26,000-27,000 new jobs for Jefferson County by 2025.

Martinez also addressed what he said was wrong information circulating in the community about the project.

The Post and Courier

Now that recent legislative skirmishes over port rail lines have ended, it's time to take a hard look at the idea of building intermodal rail facilities and rail lines on the Noisette and Clemson properties at the northern end of the old Navy Base. This idea is simply unworkable because of numerous legal impediments.

This spring, legislative leadership introduced a budget proviso and amendment to the ports authority-restructuring bill that sought to force rail access through the northern end of the old Navy base. Meanwhile, the Department of Commerce and its Division of Public Railways offered up recommendations in the State Rail Plan 2008 Update to pursue options that included developing the Noisette and Clemson sites into rail facilities served by northern access.

Developing these sites as rail facilities and forcing northern access is the wrong choice for a number of reasons,

The fights in local communities over eminent domain utilization for intermodal facilities are a nationwide area of local dispute.  The above two article are good examples. 

Flood Protection

 

InForum

Former North Dakota Gov. Ed Schafer and several Fargo-area businessmen and politicians today kicked off a lobbying effort for a Red River diversion running through North Dakota to protect Fargo-Moorhead and surrounding communities from flooding.

Schafer is acting as spokesman for the newly formed Flood Protection Coalition for the F-M Community, which has launched a Web site, www.fmfloodcontrol.com.

Schafer said a western diversion would face fewer political problems, and could be cheaper in some respects, than a proposed $909 million diversion channel through Minnesota.

“For politics, for expediency, for cost, we think that the way to go is this,” Schafer said.

As a bonus, he said the channel could follow the Winnepeg diversion model and allow alfalfa to be grown in the dry channel to keep rich farmland in use and provide feed and biomass for fuel.

“We can maintain all but about 600 acres” of the land needed as productive farmland, said Schafer, who served as U.S. agriculture secretary for almost a year under President George W. Bush.

Schafer said his group proposed the plan last week to the U.S. Army Corps of Engineers, which is studying flood control alternatives for the Fargo-Moorhead metro area.

He had no cost estimate for the project, which the group has proposed start at the Wild Rice River west of Interstate 29 and end north of Argusville, N.D. However, the group’s literature estimates that the federal government would pay about $650 million on a $1 billion project.

The group said the diversion would protect Fargo, Moorhead, West Fargo, Oakport, Minn., and Briarwood, Round Hill, Hickson, Horace, Oxbow, Harwood and other North Dakota towns and subdivisions.

Schafer said in a phone interview before the press conference that the group, made up mostly of “business folks,” wants a plan that will provide protection against a 500-year flood level and last 100 years.

By splitting the Red River’s flow, a diversion would provide equal protection on both sides of the river, said Schafer, whose home on Fargo’s Rose Creek Golf Course was surrounded this spring by sandbag and clay dikes.

Schafer said a diversion has some advantages over a dike system, which would require moving homes, building levees that detract from the view of the river and restricting development in certain areas.

“It allows development and investment in the community, which is what our group is interested in,” he said of a diversion.

Schafer noted there has already been pushback on a diversion on the Minnesota side of the river, and the coalition wants to make sure the corps seriously considers a diversion on the North Dakota said.

The coalition’s Web site states that it was set up “by a group of concerned citizens to help the public contact the decision makers involved in getting permanent, comprehensive flood protection for the FM area. We believe the only way to truly protect the FM area is a diversion. Dikes settle, flood walls break, a diversion like Winnipeg built is the best road to long term flood protection.”

The Web site contains a form letter arguing for a diversion as the best flood protection option.

Visitors to the Web site can choose to send the letter to North Dakota or Minnesota officials and corps officials who are studying flood control options for the F-M area.

The North Dakota letter gets sent to Gov. John Hoeven, Fargo Mayor Dennis Walaker and corps project managers Aaron Snyder and Craig Evans.

The Minnesota letter also gets sent to Evans and Snyder, along with Gov. Tim Pawlenty, Moorhead Mayor Mark Voxland and state Rep. Morrie Lanning, R-Moorhead.

The letter states that levees could fail, and that a Fargo-Moorhead diversion wouldn’t have to be as big as the original Red River Floodway built in Winnipeg in the 1960s at a cost of $350 million to $500 million when adjusted to today’s dollars. The corps’ preliminary estimate for a diversion on the Minnesota side is $909 million.

Walaker said he’s been asked by at least one coalition member to support the diversion, but he wasn’t aware of the Web site or today’s press conference.

Walaker said that while “all of us would love a diversion,” he doesn’t believe it will be the corps’ preferred alternative because of its cost.

“The land costs alone are going to be enormous,” he said, noting that land costs were far less when the original Red River Floodway that protects Winnipeg was built in the 1960s.

Budget woes in Congress also may work against a diversion, he said.

“With the money being tight, I can’t imagine that their preferred alternative is going to be the most expensive one,” he said.

Coalition member Mary Alice Bergan, who lives with her husband, Ron, a few blocks from the river in south Fargo, said both their home and business, Fargo Assembly, would have been threatened by floodwaters if river levels had gotten as high as predicted this spring.

“And that kind of scares a person,” she said.

The corps had requested public comments on the various flood control options by June 22, according to the Web site.

Following is the unedited text of the form letter:

“We need a 100 year solution! The only method of flood protection that is sure to work is a diversion.

“Permanent levees could fail, especially at the extreme predictions of possible heights that were projected for F-M in the 2009 flood fight. Levees pose a greater risk of a catastrophic failure.

“The 2009 flood made us realize that a flood over 45 feet is possible. Homes have been destroyed because they were sliding into the river, the old Trollwood and Edgewood clubhouse were sliding into the river, roads, dikes, etc have been damaged by the unstable soil along the river. Building anything 50 plus feet above the river bed and on the banks of the Red River is sure to fail at some point.

“It would not be necessary to reroute all of the water in the Red River around the towns. The Winnipeg diversion has worked great and protected their city in 1997. The floodway capacity was at 60,000 cfs in 1997. The original diversion price adjusted to today was $350 to $500 million. In F-M the river is about 100 feet wide, in Winnipeg the river is about 450 feet wide (nearly 5 times as wide). The red river valley is full of ditches (drains). The diversion would just be a bigger ditch. A bottom width of about 50 feet appears to be what would be required based on the 2009 flow. The flow at Fargo was 29,100 cubic feet per second at 40.82 feet this spring.

“The cost with a smaller diversion could be significantly reduced and should give it a favorable cost benefit ratio. The proposal of the Corps to start at the Wild Rice River and end way north of Harwood is very good. The diversion would offer better protection from overland flooding on the ND side of the river. Property will have to be taken by eminent domain; either homes along the river and drains for dikes and flood walls etc., or farmland for the diversion. The $909 million for the diversion would seem to have much greater benefits than the levees.

“We need to find a way to get a favorable cost benefit ratio or find another way to fund the diversion It should be selected immediately as the preferred.

Flood protection is a governmental act.  Unified and well planned programs are necessary if we are to protect communities.  Forget about past mistakes in flood control and improve what we have to face.  The “Inforum” Fargo, North Dakota article comprehends the problem.   So does the former Governor!

 

Economic Development

North Carolina News Network

State lawmakers could ask voters to decide whether the government should be allowed to take a person’s land for economic development purposes. The power of eminent domain allows governments to seize private property for public use, provided the owner receives fair compensation.                   

The North Carolina News (Blog) mentions something key to a fair post Kelo process.  Quite simply, let the voters of the State decide when a property can be taken and what a public use is within the respective jurisdiction. 

 

Texas Saga

KFDA

Amarillo, Texas- As expected, Texas Governor Rick Perry has called for a special legislative session.  He announced Thursday that lawmakers will be called to Austin July 1st.

The filibuster at the end of the last session to prevent a voter ID vote prevented two essential bills from getting passed.  A safety net measure would allow the transportation and insurance departments and others to keep operating.  Also, the Texas Department of Transportation depended on $2-billion of road building bonds that weren't passed.

So the primary goal of lawmakers is to get those two bills passed this session.

This synopsis by KFDA in Amarillo explains only the most recent part of the Texas saga, in which the Governor is required to deal with the municipal\ public body\ bureaucracy against the libertarian\property owner and farmer lobbyists.

Federal Courts

 

West Virginia Record

 

CHARLESTON - A federal judge has dismissed a lawsuit filed by a developer targeting the city of Dunbar and one specific member of the city's council.


Robert Weidlich, through his company, Weidlich and Associates, claimed the defendants had effectively taken his property without compensating him by denying his requests to have the land rezoned so he could sell the property.

U.S. District Judge John T. Copenhaver on Monday dismissed Weidlich's case as being "unripe" for review, primarily because there were other avenues -- besides a constitutional lawsuit -- for Weidlich to explore.

Weidlich filed the lawsuit in October 2008 after the city's planning commission, and later city council, voted in 2006 to disapprove of his request to have his property rezoned from single family use to multi-family use.

 

Copenhaver, in his order, said Weidlich had an avenue through West Virginia law to seek compensation for the land.

Copenhaver said that Weidlich could have initiated an inverse condemnation action in state court. He also could have requested a circuit judge compel the city to institute eminent domain proceedings on the land.

"Because Weidlich has not taken advantage of these state modes of redress, and thus has not been denied just compensation … its takings claims are unripe," Copenhaver wrote.

U.S. District Court case number: 2:08-1185

 

Having the ability to bring an action in Federal Courts is increasingly difficult.    The federal system defers to finality of State processes before providing any possible consideration of cases.

 

Blight

Roanoke Virginia Times

"We're going to prove that Carilion and the city got together in advance and decided to make that land available for Carilion. And then, to satisfy the agreement, adopted the redevelopment plan," said Joseph Waldo, B&B's lawyer. "The cart was clearly before the horse."

Originally slated to be a biomedical business park, the area has evolved into a home for Carilion physicians and the new Virginia Tech Carilion School of Medicine and Research Institute.

The latest estimated budget for the redevelopment project has grown to $26 million from an early estimate in 2000 of $14 million, according to the cooperation agreement between the city and the housing authority.

The housing authority's lawyer, Mark Loftis, said while Carilion and the city did talk about the South Jefferson area and the biomedical park early on, it didn't affect the housing authority's role.

The housing authority has argued that the purpose of the redevelopment plan is to remove blight and blighting influences.

"Certainly Carilion and the city had discussions and Carilion was interested in this area, but the housing authority is the one that engaged the consultants and made the blight determination," Loftis said. "While the city entered into agreements with Carilion, those don't bind the housing authority."

B&B is not considered a blighted property. Instead, it was surrounded by blight, and under the law at the time of the 2001 plan, the housing authority could include properties that were not blighted so long as the majority of the properties in redevelopment areas were blighted, Loftis said.

According to the redevelopment plan, 74.4 percent of the South Jefferson redevelopment area was either blighted or improperly developed.

This is an article, which is illustrative of the problems of ascertaining the propriety of takings for blight.  By example, how does an ‘improperly developed’ property give rise to a cities right to acquire under blight?  Is this a veiled attempt to take something not blighted?  Is the private development a public use?  Or the developer’s profits?

Undergroud Energy Storage

Des Moines Register

Compressed air would be stored in a network of 13 wells 3,000 feet deep and then released at strategic times to turn the turbines on two 134-megawatt electricity generators.
The stored energy project is promoted as not only a source of non-fossil-fuel energy but also a way to store some of the surplus electricity generated during nonpeak hours.The house and land just west of Dallas Center will be bought from Ray Keith. The Stored Energy Center also is negotiating a potential lease with another Dallas County landowner, John Mortimer, but the two sides have yet to reach an agreement.
Stored Energy Park officials hope to have the first well drilled by fall. The well will test the ability of Iowa's subsurface rock to hold air compressed up to 1,400 pounds per square inch.
"This will get us started on the first phase of the project," Stored Energy Park attorney Nicholas Critelli told the board before the vote. "In order to have some comfort level we need to do some invasive testing."

The recent Des Moines Register article fails to include a note that those who own land above the future storage area have rights!   The communities should anticipate a very unpleasant surprise.

A Simple Apology

 

LoHud.com

PORT CHESTER - The village apologized to a property owner today for improperly seizing his land a decade ago and officially signed an agreement that will pay him $475,002 and name a street after him.

"The village acknowledges the importance of this litigation and regrets the hardship it has caused Mr. Brody for the years he has had to fight to vindicate his rights," Mayor Dennis Pilla read from a statement at Village Hall.

The public apology was part of a settlement that will give William Brody $475,002 and name the corner of North Main Street and East William Street "William Brody Plaza."

"I'm glad everything came to a close," Brody said after the news conference.

Dana Berliner, his attorney with the Institute for Justice, acknowledged that the terms of the agreement were unusual, but noted that Brody's case led to a landmark change in state eminent-domain law.

This recent, Lower Hudson Journal News, article hits on something that places similar to Freeport, Texas should look at; a simple apology by a condemning agency for taking away an individual’s right to maintain and own property.


Assessed Value Compared to FMV

Business Week

Assessed at $148,400; bought for $280,000. Assessed at $172,200; bought for $345,000. Assessed at $440,000; bought for $2.8 million.

Yi's property assessed in 2007 at $88,200. The city is offering $100,000.

What's wrong with this picture?

City officials: Stop paying your attorney to duke this out in court and offer the man $200,000 plus the legal expenses he incurred so far to fend you off. Do it before those expenses climb any higher.

The recent Newport Daily News article in Virginia fails to recognize that the assessed value frequently is a gross underestimation of fair market value. Few people call the local assessor and say, “you have under assessed me, so please raise my assessment so I can pay more taxes.” The assessment should not be used as part of the analysis because it is inadmissible information  due to it being unrelated to fair market value.

 

Quick Take Proceedings

 

Daily Press 

In explaining the contract, city officials said the Hornsbys were already in the midst of expanding their business on land next door, so the city's offer not only had to consider the cost of the existing business and the planned expansion but also the number of jobs the new facility would create and its future growth potential.

"It's more than replacing an existing business and more than just a land acquisition,"
Kingston said.

• In 2008, the city bought two properties on
Oyster Point Road, which were needed for the expansion of the city's Public Works operations center. Both properties were purchased for more than double the assessed value and after two appraisals were done for each of the properties.

Usually, the city tries negotiating sale prices with property owners. If this fails, however, the city has two options to go through the condemnation process.

The more traditional approach is called slow-take, which requires a trial to determine fair market value.

Another option is called quick-take, during which the city would deposit the appraised value of a property with the courts and then take immediate possession of the property.

"In this case, the judge said for this project, the locality can't take that procedure,"
Jackson said. "But the condemnation is still authorized and lawful. We simply have to go through the slow process."

Usually, the city tries to avoid going through the court process because of the expense.

In 2002, for example,
Newport News offered the owner of a downtown property $310,000 based on an appraisal. The city needed the land for the expansion of the district court. The owner, however, refused to sell.

A judge in 2006 ordered the city to pay him $500,000, city officials said.

"It's not so much that the jury generally sides with the property owner,"
Jackson said. "But it's more of a byproduct of how the legal system works." With the locality offering one amount and the property owner wanting another, it is very likely a jury will pick a number in between, Jackson said.

Yi's attorney argued that the recreation center does not rise to the level of an urgent and immediate need for condemnation.

"It does not justify this extreme measure," said Henry E. Howell III, Yi's attorney.

"The recreation center is not even funded yet," he said. "What they should do is to give the owner more time. Don't rush into it and condemn the property."

The case is now set for a jury trial to determine the value of the property,
Jackson said. A trial date has not been determined yet.

"They did not use a quick condemnation with Denbigh Toyota," Howell said, but it was used on "the little people" next door

This recent Newport News article describes the problems and harshness of quick take proceedings.  It also describes the problem with eminent domain proceedings initiated prior to funding for the project or finalization of the project plans.

 

Colo. governor blocks Army expansion on ranchland

 DENVER (AP) — The Army's plan to expand a southeast Colorado training site is facing another obstacle now that Gov. Bill Ritter has signed a measure barring the use of state land for the project that is opposed by ranchers.

Ritter approved legislation Tuesday that prevents the state from selling or leasing land to the Army to expand the Pinon Canyon Maneuver site. About 20 percent of the land the Army wants for the site is state-owned.

The Army first announced its plans more than three years ago, saying it needed to expand the 370-square-mile site to about 525 square miles to accommodate new weapons, tactics and soldiers. But neighboring ranchers united to fight the effort, picking up support from state lawmakers and members of Congress.

They also filed a federal lawsuit accusing the Army of not carefully considering the environmental impact of the expansion on the arid, short-grass prairie landscape. Judge Richard Matsch is scheduled to hear arguments in that case in Denver on Wednesday.

Ritter said the bill was not anti-military, as Colorado's two Republican congressmen suggested. He said it doesn't resolve the issue but will provide farmers and ranchers with a safety net while negotiations continue with the Army.

"This legislation says to landowners that their state government is listening. It also reaffirms our commitment to work with all stakeholders to find a mutually agreeable path forward, a path that protects private property rights and allows the military to effectively train this nation's fighting force," Ritter said.

What this Governor is really saying is that he wants your vote.  The reality is that  the United States can acquire the property if the public need is there to expand the facility.  What the State of Colorado has to say would be irrelevant because the Constitutional delegation for the military needs of the United States of America will prevail over local desires!

California Full Circle

Desert Dispatch

California’s budget problems are structural and require fundamental long-term changes. One such change, which could eventually make a $5 billion dent in the state’s estimated $24 billion deficit, is a revamping of the state’s redevelopment law, a 1950s-era relic that siphons away 10 percent of the state’s property tax revenue and diverts it to developers who are subsidized to “redevelop” shopping centers and vacant land.

Redevelopment is problematic for many reasons. It is a central-planning mechanism that undermines property rights and shifts development decisions from the free market to government planners. It was meant to be temporary — a tool to allow cities to stimulate growth in blighted areas. It has become a permanent bureaucracy that allows cities to incur enormous debt without a public vote. There’s much to debate about redevelopment’s policy implications, but the amount of money involved should focus the Legislature’s attention on this process as soon as possible.

Should residents pay more taxes for a program that basically subsidizes developers? Should education and other services be cut while billions of dollars in subsidies and debt get a pass?

Reforming or even shutting down the redevelopment process could send billions of dollars back to Sacramento. Redevelopment agencies are, by law, state agencies even though city officials run them.

Since the state is in control of the agencies, then the state should take back its money. The state should freeze all new redevelopment projects. Much of the money would go toward paying off existing redevelopment debt, but a significant chunk of the property tax diversions go to pay for redevelopment’s administrative costs.

It also would have other policy benefits, given that redevelopment agencies routinely abuse eminent domain, facilitate overdevelopment of shopping centers and impose low-income subsidized housing on cities. It’s time to take a close look at the redevelopment game.

The notion that the "government knows best" has come full circle. The collectors now realize that by giving away everything to developers, the cupboard no longer has the ability to tax.

Palmyra Obstacle

The Philadelphia Inquirer

The 104 acres, called a mess by the borough, are central to plans for redevelopment. Now the company is suing.

Consultants examining 189 acres targeted for redevelopment in Palmyra found the largest property owner's site in disarray.

The Fillit Corp. site, they wrote in a report last year, was covered with ground-up vegetation, mounds of mulch and topsoil, a dilapidated office trailer, inoperable vehicles, and piles of junk abutting Pennsauken Creek.

Also, it and nearby properties were the subject of ongoing investigations into contamination from a long-closed landfill, while its soil samples had elevated levels of pesticides, arsenic, and other chemicals, according to borough records.

Now Palmyra is fighting a legal challenge from Fillit over the borough's designation of the area as in need of redevelopment - a lawsuit that has thrown another obstacle before a major South Jersey project already scaled back because of the economy.

Once a sand- and gravel-mining operation, the land is mostly used as a recycling facility where vegetation waste is turned into products such as mulch and wood chips, according to court records. The site is part of a state-designated Brownfields Development Area, where an environmental contractor is conducting an investigation that will lead to environmental-remediation and reuse plans.

The area has been used for deposition of dredge spoil from the Delaware River, an airport, and a munitions testing area.

A municipality that takes certain steps under New Jersey law to designate an area as blighted, and hence in need of redevelopment, may take the property by eminent domain.

Fillit's real concern is it doesn't want to give its property away "and owe money, and the lawsuit makes everybody come to the table and makes everybody sit down and discuss it," Rucker said. "We don't want it to be tied up, they want to sell it, so there's got to be somewhere in the middle we can reach."

In its normal avaricious fashion, a New Jersey community is making a 'contamination claim' to support a desire to condemn a property. Clearly, the eminent domain process contemplates acquisition for public use, fully contemplating public safety as such a public use. Nevertheless, behind the veil of 'contamination' courts should skeptically review whether the police power argument is simply a way to obtain a parcel which otherwise could not be purchased.

345-kilovolt transmission line to carry electricity from wind farms

Enid News

OKLAHOMA CITY (AP) — Two judges in northwestern Oklahoma have ruled for Oklahoma Gas and Electric in its attempts to gain private property through condemnation so it can build a high-voltage oltage transmission line.

OG&E wants to build a 112-mile-long, 345-kilovolt transmission line to carry electricity from wind farms near Woodward to Oklahoma City.

Landowners argued OG&E would use the lines for private purposes because it wanted to sell much of the electricity out of state.

But judges in Blaine and Dewey County ruled Monday in separate cases that OG&E has shown its customers in Oklahoma would also benefit and the condemnation should be allowed…

Some landowners have said they fear the line will devalue their properties, obstruct their views, create dangers for crop dusters, damage global-positioning systems on expensive farming equipment and create health risks for landowners who have pacemakers.

For the most part, the propriety of the routing is to be determined at the administrative hearing level. The hearing will be at the Federal (Federal Energy Regulatory Commission) or state public service (utility) commission.

In the best of circumstances, the chance of a successful challenge at the trial court level is minuscule.

Syracuse Macy's Condemnation

Syracuse.com

A judge has struck down an attempt by the Macy's Department Store at the Carousel Center to collect more than $50 million from the mall's owner in a dispute over the building's expansion.

Macy's filed a lawsuit in April 2008 accusing Carousel Center Co. of breaching a series of real estate agreements related to its store at the mall, which opened in 1990. The suit alleged that Carousel broke those contracts by "inducing" the Syracuse Industrial Development Agency to use its eminent domain powers to take away some of Macy's rights as the mall's biggest anchor store.

Macy's also is seeking compensation in a separate valuation proceeding as part of the eminent domain proceeding. But it filed the breach of contract claim after Carousel Center and the development agency took the position that any "consequential" damages arising from an eminent domain action are not recoverable under eminent domain law.

On May 19, Cherundolo granted Carousel's request that the lawsuit be dismissed. He said the store could make no claim against the mall's owner over an eminent domain action by a government institution, even if Carousel Center asked the government body to take the action.

He said the U.S. Supreme Court has repeatedly declared that every contract, whether between the state or an individual or between individuals only, is subordinate to the government's right to appropriate property or property rights.

"Whether enticed to do so or not, that was a decision made by a local government institution, one empowered by eminent domain, and one that has made an independent decision based upon its own needs and adequate public purpose," he wrote.

Without regard to the merits of the claim of inducement to take the tenant's rights, this is a prime example of the importance of a carefully drafted condemnation clause in a lease!

Warwick Runway Expansion

NECN

Some residents of Warwick, Rhode Island have begun the fight against a runway expansion plan at the state's largest airport, T.F. Green.

Federal officials have endorsed a plan to extend the main runway at T.F. Green Airport by 1,500 feet.

A runway extension would accommodate jets with larger fuel loads -- such as those making nonstop flights to the West Coast and Europe.

But the expansion would come at the expense of 11 homes, 10 businesses and athletic fields, which would be demolished in order to obtain the necessary space for a longer runway.

Other property owners living close to the expansion could elect to sell their land under a voluntary program.

Airport officials have tried to expand T.F. Green's runway for a decade but met resistance from local residents who could lose their homes.

The airport intends to buy the land necessary for its expansion in private deals with owners, but it could ultimately use eminent domain laws to take the land and compensate the owners.

This is serious business.  Airport takings are like few others.  The impact of past activity is relevant to the existing values.  The diminutions created by the existing runway must be appropriately dealt with in this Rhode Island eminent domain proceeding.

Tinicum

Delco Times

U.S. Rep. Joseph Sestak, D-7, Of Edgmont, said Sunday the real linchpin to halting the Federal Aviation Administration’s NY/NJ/PHL Metropolitan Airspace Redesign lies in Tinicum.

Philadelphia, as owner of Philadelphia International Airport, hopes to acquire some 72 homes and 10 businesses in the township as part of a proposed capacity enhancement plan.

Under an agreement that expired in 2007, the city required township approval before it could buy land in Tinicum, but no new agreement has been reached. Philadelphia does not have eminent domain outside its borders.

According to a Government Accountability Office report published last year, the FAA did not do a cost-benefit analysis before implementing the redesign, which Sestak said only reduces flight delays by less than a minute in its current form.

Delays could be further reduced were Philadelphia to acquire the Tinicum properties for the CEP, said Sestak, but the $5 billion price tag for that plan is prohibitive and the resulting delay reductions are minimal.

He is instead urging PHL to employ smaller regional airports for commuter flights, which would be far less costly and have a greater impact on delays.

Here, we have what all too many around airports are learning or have, unfortunately, learned. The potential for diminution of use in face of a contemplated future eminent domain act is substantial. Facing a future condemnation places a severe blight on the property, which should be disregarded at the time of the acquisition.

Landfill Valuation

 

Choice ER

With Glenn County's landfill nearing capacity, the Board of Supervisors Tuesday approved an environmental report and authorized the process toward expanding the facility.

Glenn County Planning and Public Works has been looking for alternatives to expanding the landfill since 2005 because the facility is nearing capacity.

Deputy planning director Randy Murphy recommended the board approve plans for a expansion, lined to prevent seepage into groundwater.

The project is estimated to cost up to $5 million for the design and initial construction of the expansion.

Though expanding the landfill is aimed at extending its use 25 years, Murphy told the board he plans to only expand what he thinks would be needed in five-year increments.

"My intent is to bite it off in chunks, $5 million at a time," Murphy said.

To offset the cost, the board recently approved an increase in the landfill dumping fees. Murphy told the supervisors the county could also obtain low-interest loans through the state.

Additional environmental reports will also be done later to determine specific impacts.

Some of the supervisors voiced concern about proceeding while the county is still engaged in acquiring the leased landfill property through eminent domain, and wanted to wait.

The valuation of landfill property is a world unto itself. The adjacent vacant land has a myriad of potential alternative uses; all, which create values far in excess of what exists in the market.

 

Bankruptcy and Condemnation

News Leader

CU wants to buy Spence's property -- and two other tracts owned by others -- to build a new bus transfer station at the corner of St. Louis Street and Benton Avenue.

CU has tried to negotiate a sale with Spence, but the tract, the former site of the Arbor Hotel, is included in an ongoing bankruptcy case Spence filed with the court.

On Wednesday, CU asked the court to remove the tract from the bankruptcy case so the utility could move ahead with efforts to acquire it.

"Nothing can be done with the property while it's in bankruptcy court," said CU attorney Rex McCall.

"For us to file for eminent domain, the bankruptcy court has to make it so it's not part of the bankruptcy case. If our request is approved, there will still be negotiations with her."

CU already has agreed to pay $305,000 for one of the transfer station tracts and $510,000 for the other.

However, those deals are contingent on CU reaching a deal with Spence for her property.

Neither Spence nor her bankruptcy lawyer, David Schroeder, returned News-Leader calls for a comment.

The acquisition of property in bankruptcy is not an easy issue. The rules of valuation are different. The effect of the impending condemnation frequently is a part of the cause for the bankruptcy filing. The Bankruptcy Court maintains the authority and discretion to release the property to allow the agency to file an eminent domain proceeding.

Barnett Shale Measures

Dallas News

The first two bills aimed at natural gas operations in North Texas' Barnett Shale passed in the Senate on Tuesday.

The bills, now headed to the House, are among a spate of legislation introduced this session to regulate various aspects of the industry, which channeled about $11 billion into the local economy last year, according to a recent report.

Activity in the massive underground gas field known as the Barnett Shale has slowed significantly because of the recession. But the hope among many is that lawmakers will put new rules in place this session ahead of any recovery.

"Now is the time for this to take place," said Fort Worth resident Greg Hughes, who opposes drilling in urban areas. "If we wait until the industry fully recovers, it will be too late."

With a record number of bills introduced this session – and a majority expected to die – some North Texas lawmakers said legislation affecting the Barnett Shale region is a high priority. The Barnett Shale spans 18 counties, including Tarrant, Denton and parts of Dallas.

One of the bills clearing the Senate would allow pipelines in Texas Department of Transportation rights-of-way. That means they could bypass some residential neighborhoods and possibly reduce the number of eminent-domain cases.

"It is important that this industry grows in a way that is respectful to the neighborhoods and quality of life that Tarrant County families enjoy," Sen. Wendy Davis, D-Fort Worth, said in a prepared statement.

The bill, sponsored by Davis, also has the endorsement of industry officials…

One would hope that the local public interest organization is involved in the process to insure the protection of the property owners.   There involvement is especially important to the owners of mineral rights, which may not be fairly recompensed.

 

Condemnation of Land Leases

StlToday.com

Spirit of St. Louis Airport soon will start buying 345 acres that it uses but does not own.

The airport has received a $1.458 million federal grant for the first year of a three-year project to buy out the land owners. John Bales, the county's director of aviation, said the airport hoped to buy 100 acres this year, but the precise acreage won't be known until appraisals and negotiations are completed. Bales said that eminent domain will not be part of the process.

The purchases would start with critical parcels — those under runways, taxiways and key buildings, he said.

The county, the Federal Aviation Administration and state transportation officials agree that Spirit would avoid a financial crunch if it bought the parcels now rather than wait until leases are close to expiring, Bales said.


Haglin & Co., the private company that opened the 1,250-acre airport in 1964, obtained the ground in 1961 through 99-year leases, mainly from farmers.

The county, which bought the airport in 1980, pays a total of nearly $44,443 a year to the leaseholder

The County Council last week approved the hiring of O.R. Colan Associates of Fort Lauderdale, Fla., as a consultant to handle the purchases in all three years of the project. Colan will be paid $234,000 over the three years to take care of appraisals, title searches, land and environmental surveys and negotiations with the property owners.

The condemnation of land leases is not quite so simple. The leases were initiated when the airport desired the revenue from private parties (all to the detriment of potential competitors in the marketplace) after expropriation from private owners. Now after having the benefit of the income on land taken by eminent domain it will condemn the leases.

Power Line Expansion

 

Harvard Law Record

President Barack Obama '91's plans for energy and climate-change policy could alter the balance of power between the federal and state governments, according to Adam White '04, an Associate at Baker Botts LLP who specialized in energy litigation.

White spoke on Monday, April 20 at an event co-sponsored by the Harvard Federalist Society and the Harvard Journal of Law and Public Policy.

White, who clerked for Judge David Sentelle of the D.C. Circuit after his graduation from HLS, described his job- litigating constitutional and regulatory issues specific to the energy industry, particularly at the appellate level-as "the most interesting job in energy law."

According to White, pursuing President Obama's goals for energy and climate-change reform will require making choices about the allocation of power between the federal and state governments, creating tension that White described as having been "strangely overlooked."

Because energy infrastructure often crosses state lines, the federal government may seek to pre-empt state regulations. Most statutes, however, give the states "out-and-out vetoes" over federal projects, White said.

This can create a set of complex interactions that White referred to as "the Adam White full-employment plan." "When Congress thinks its making things easy, it usually isn't making things easy," White said. "Congress needs to make clear what they are doing with state and federal power."

Realistically, there are two conflicts at hand with the proposed power line expansion. First, is the potential for conflict between federal and state decision making processes. The second conflict arises out of the fact the utility companies are for profit entities all the while using the cloak of 'public use' to condemn private property. This problem is exacerbated by a complete lack of state utility public service commission restraint and review.      

 

 

Public Beaches

Texas Lawyer

A California woman has drawn a line in the sand, contending that the state should pay her for homes it says she must remove from what is now a public beach.

A divided 5th U.S. Circuit Court of Appeals panel asked the Texas Supreme Court to answer three questions that could settle the dispute.

But the importance of the opinion goes beyond the two beach homes. One legal expert believes the case could lead landowners to run to the courthouse any time a hurricane shifts the shoreline, and a law professor maintains a victory under the plaintiff's novel legal theory could result in more Fourth Amendment unlawful-seizure claims over real property.

After Hurricane Rita hit the Texas coast in September 2005, state officials informed San Diego attorney Carol Severance that two beachfront houses she had bought earlier that year in Galveston were now on the public beach and subject to a removal order at any time.

Severance sued state and local officials, alleging in her October 2006 second amended complaint that they were unlawfully enforcing the Texas Open Beaches Act (OBA) in a manner that deprives her "of valuable real property and homes without rational basis or just compensation." In May 2007, U.S. District Judge Kenneth Hoyt of the Southern District of Texas in Houston granted the defendants' motion to dismiss Severance v. Patterson, et al. Severance then appealed to the 5th U.S. Circuit Court of Appeals.

Judge Jacques Wiener Jr., the third member of the 5th Circuit panel, has a different view of the property rights issues. Wiener wrote in his dissenting opinion that the majority incorrectly held that Severance has standing to assert her takings claim if it becomes ripe.

"At bottom, there is but one easement, albeit one whose boundaries could shift and have shifted. Thus, if there ever was a taking, there was but one — and it occurred long before Severance acquired title to the properties," Wiener wrote.

As noted in the dissent, shifts in the vegetation line do not create new easements but instead "they expand the size and reach of that one dynamic easement."

Wiener also wrote in his dissenting opinion that Severance lacks standing to bring her Fourth Amendment seizure claim. According to the dissent, the U.S. Supreme Court's 1984 decision in United States v. Jacobsen defined a "seizure" for purposes of a Fourth Amendment claim as a "meaningful interference with an individual's possessory interests in his property." The owner of the properties at the time the public's easement attached held the "right to exclude" the public from the dry beach portions of the property, but Severance has never had that right, Wiener wrote.

In his dissent, Wiener also took issue with what he perceives are the objectives of Severance and the Pacific Legal Foundation (PLF) in bringing the suit, which he calls a "quixotic adventure."

Public beach cases divide state judiciaries. Nothing created greater controversy in the Michigan Supreme Court opinions than where one could walk in the "water." This has a state law underpinning, yet property rights under the navigable water rules.

Blight

WSJ.com

U.S. Supreme Court rulings on property law don't often serve as clarion calls to wide swaths of the population. But most rulings aren't Kelo v. City of New London.

States long have had the power to condemn private property for such purposes as building highways or bridges. But in the 2005 Kelo ruling, the court held that governments also can take property for the purpose of promoting "economic development," a broader justification than the court had previously allowed.

The ruling led to a widespread backlash, with more than 40 states passing laws in recent years aimed at limiting the power of so-called "eminent domain," including measures to remove "economic development" as a justification for seizing property.

But in many states the effort to blunt the impact of the Kelo ruling has proven elusive, say some property-rights advocates and academics. The problem, they say, is that many states still authorize the seizure of property that is deemed "blighted," a term often defined so broadly that it enables "virtually any property to be condemned," says Ilya Somin, a professor at George Mason University School of Law.

As a result, property-rights advocates say, states should adopt legislation that redefines blight. "It should be confined to true nuisance properties that pose a direct threat to public health and safety," says Scott Bullock, a lawyer for the property owners in the Kelo case.

Eminent domain undoubtedly can serve as a useful tool for cities, say D. Benjamin Barros, a property-law professor at Widener Law School. He cites the seizure of the area where New York's Lincoln Center was built, which helped revitalize Manhattan's Upper West Side. Still, he says, many states' blight laws need reform. "Blight is so broadly defined in many states it gives governmental authorities almost unlimited power to use eminent domain."

Many jurisdictions, which now limit eminent domain proceedings for blighted properties continue to have to deal with the question of how to determine what is a 'blighting' influence.  With the forthcoming destruction of neighborhoods due to the foreclosure melt down, the issues will be at the forefront shortly.

Texas Modification

Sealy News

Texas representatives have added additional protection to landowners against eminent domain abuse by repealing the “jury of view” process from the transportation code.

The legislation, authored by Rep. Lois Kolkhorst, R-Brenham, repeals the powerful, but rarely used process known as “jury of view”, which local governments can invoke to remove important constitutional protections usually afforded to landowners. The process gives county commissioners the opportunity to appoint five individuals to determine the path of a road and assess any damages incurred by property owners with no appeals process.

“This is a great example of how getting rid of a law will protect our rights and give more power to the property owners,” Kolkhorst said. “We need to shut down this loophole because it gives the government a way to avoid eminent domain proceedings.”

Landowners who oppose the process say that jury of view allows local governments to be the final arbiters of a land condemnation proceeding and denies affected parties a new trial to review or challenge a condemnation decision.

Critics say the process has sometimes been abused, and has been selectively used by local governments hoping to avoid the scrutiny that traditional eminent domain hearings may bring to controversial projects.

“This law denies the public their constitutional due process to landowner protections. It’s time to get rid of it, and I’m glad my fellow lawmakers agreed,” Kolkhorst said.

The bill passed unanimously and had the support of the Texas Farm Bureau.

By legislative action, Texas is modifying what might have otherwise required judicial nullification of an unconstitutional process. 

First Amendment Encumbered

Leaf Chronicle

The libel suit filed against members of the Clarksville Property Rights Coalition has been dismissed.

In a ruling late last week, Sumner County Judge C.L. Rogers dismissed the libel suit filed by Richard Swift, a former City Council member, and Wayne Wilkinson, a member of the Downtown District Partnership.

The two filed suit after the CPRC ran an ad in The Leaf-Chronicle on May 3.

The ad urged the public to lobby their representatives to vote against the Clarksville Center Redevelopment Plan, whose references to eminent domain proved controversial.

"This redevelopment plan is about private development. Our city government is controlled by developers," the ad said. "Mayor Johnny Piper, Councilman Swift and DDP member Wayne P. (Wilkinson) are all developers."

Rogers ruled that the ad was not libelous because it did not meet the standards of defamation.

"Accusing a public official or public figure of using their political influence to obtain a benefit for others or of themselves or favoring their supporters is not defamation," Rogers wrote in his ruling.

Swift and Wilkinson had sought $500,000 in damages. Under Rogers' ruling, the two will be assessed court costs.

A link to Rogers' complete ruling is available to the right of this article.

For more on this story, see tomorrow's Leaf-Chronicle.

It is tough enough one loses property, but it is unfathomable that, along with the violation of the Fifth Amendment, the individual's First Amendment rights are encumbered.

Fallout from Energy Act

Right Side News

As discussed in Fallout from the Energy Policy Act of 2005, Pt 1, the United States federal government is taking a more and more integral role in the distribution and transmission of electricity and in the energy sector throughout the U.S. And such is the result of both federal regulations and laws mandating the deregulation of public utilities as well as the repeal of the Public Utilities Holding Company Act (PUHCA) of 1935, as mandated in the Energy Policy Act of 2005 (EPAct 2005). It will prove to have profound impacts on the future of not only the fiscal health of public utilities but the oversight of their maintenance and the future construction of transmission lines.

This continuing report, on the exploration of EPAct 2005, will focus upon a section of the law which has not been clearly articulated for the American people by either the Department of Energy (DOE) or members of either the U.S. House of Representatives or the U.S. Senate. Yet, this complex and important body of law represents but an ad hoc and unilateral takeover of not only the direction of energy policy but the very delivery system which Americans rely upon in order to live. …

…And to add insult to injury, Section 216(e) of EPAct 2005 on Rights-of-Way, "If a permit holder cannot obtain the necessary rights-of-way for the project, the permit holder can acquire the rights-of-way through an eminent domain proceeding in the federal district court where the property is located." And furthermore, in Section 216(f), "A right-of-way acquired in an eminent domain proceeding is a taking of private property for which the landowner must receive just compensation, which is the fair market value on the date of exercise of eminent domain."

Therefore, any fluctuation or rise in real estate property values during the course of the proceeding and including any period of time due to litigation arising from such a proceeding to the time of completion of the project, if finally approved, would not be taken into consideration. And the compensation or fair market value of the property to its owner would be locked in by the date of the initial date of the proceeding, which could potentially be years, as in the case of Kelo v. City of New London, CT 545 U.S. 469 (2005).

This is an interesting contrarian review of the now omnipresent energy policy, which will control transmission activity for years to come.

Twin Cities High Voltage Lines

Twincities.com

Minnesota regulators today approved plans to build three long-distance, high-voltage transmission lines, with the condition that one of the lines carry wind energy.

The state Public Utilities Commission granted a certificate of need for the $1.7 billion CapX 2020 project, which involves erecting three 345-kilovolt lines designed to meet the needs of the state for the coming decade.

"It's a great day for us," CapX 2020 chairman Will Kaul said, after two days of commission hearings in St. Paul.

The project, which was pushed by a group of 11 utilities led by Xcel Energy and Great River Energy in the Twin Cities, will have to sign agreements with wind developers for the line that stretches from outside Brookings, S.D. to the town of Hampton in southeastern Dakota County.

Renewable-energy advocates and environmentalists had pushed for that condition on all three lines but agreed to a last-minute compromise hammered out during the hearing today.

All the lines still need permits for their final routes. Some landowners along the Brookings-to-Hampton line told the commission that the state's eminent domain laws governing land-taking will have to be changed to ensure they get a fair price for their land.

Once the approval process is on its way, the landowners looking for assurance of just compensation will be "left in the backwind" so to speak.

Court says no to church condemnation

Star Tribune

In a case that sparked intense turmoil and contributed to the ouster of a long-time mayor, the Minnesota Court of Appeals has ruled that the city of Jordan may not carve into the grounds of a historic Catholic church in order to widen roads for future growth.

Unanimously overturning the opinion of Scott County District Judge Michael Fahey, the appeals court said Tuesday that state law prohibits cities from seizing the property of religious groups without their consent when it seeks to widen streets or roads.

The controversy carried huge symbolic weight for many in Jordan worried that Scott County's hypergrowth was ripping into the fabric of a historic downtown.

"Widening a road so close to an important historic structure is the heart and soul of the case," said Larry Martin, the church's attorney.

The city council may decide as soon as today whether to seek to take the case to the Minnesota Supreme Court.

"Right now we're praying for the city and praying for a peaceful resolution," said Pam Beckius, business administrator for St. John the Baptist Catholic Church, at the edge of downtown.

The case did present the courts with a twist they hadn't quite seen before, Martin said. It's clear that Jordan couldn't have forced the church to give up land for a street, as such. But it was not so clear that the same law forbade the use of eminent domain to take church property for the traffic signals and sidewalks needed for a wider road.

One thing the case precedent is consistent about is that when there is a prohibition on government from condemning a specific object, be it a church, cemetery or something else, the courts will refuse the condemning agency’s attempts of involuntary acquisition.

Just Compensation in Chicago

Chicago Journal

Brian Elmiger, owner of the restaurant and concert venue Bottom Lounge, found out more than seven years ago that the CTA planned to take his property. So he relocated from next to an el stop in Lake View to the West Loop. Today, Elmiger says he would never have made the move, to a refurbished building at 1375 W. Lake, if he'd known how much it would cost him.

"It is an absolute miracle that we opened again," Elmiger said. "I mean, a miracle."

But Bottom Lounge isn't out of the woods quite yet. The path to reopening involved hiring attorneys, paying for construction and, subsequently, a whole lot of debt. Three years after closing down and almost a year after reopening, Elmiger is fighting to get the CTA to foot a bill that amounts to hundreds of thousands of dollars.

So far, the CTA has forced 30 businesses to relocate to expand the Brown Line. And the temporary closing of el stops for project construction has affected them even more. At first glance, eminent domain seems like a simple law.

"This is the way public bodies get land," said Bill Ryan, a partner at Ryan and Ryan, a law firm that specializes in eminent domain cases. Ryan said there are two big questions that come up in every eminent domain claim he works on.

"One, do they," the public body, "have the right to take the property and, two, how much money do they have to pay?"

The Fifth Amendment says government can't take private property without paying for it, which is where the law leaves room for interpretation. The phrase is "just compensation," and the debate centers around what's just.

"On value, it's a wide-open issue," Ryan said. "It's a regular lawsuit: we have depositions, discovery and negotiations, and if we can't resolve it, then we have trials."

But "just compensation" can also reach beyond property value.

Because the Brown Line Expansion Project used federal funding, the CTA also had to comply with the Uniform Relocation Act, which, according to Ryan, means that the CTA was also responsible for relocation expenses. It's yet another law that leaves room for interpretation.

The $530 million Brown Line project broke ground in 2004 with the goal of providing longer platforms to accommodate longer trains, making Brown line stations accessible to disabled people, and modernizing stations. The CTA says they expect to complete construction by the end of 2009.

Public use requires the taking of land. As this article illustrates, the harm to owners is specific and can be harsh. The just compensation process provides owners the only available remedy when there is condemnation for a public use. Bill Ryan's comments are well stated.

Not Racing Past the Constitution

 

Washington Post

Rampant redistribution of wealth by government is now the norm. So is this: This redistribution inflames government's natural rapaciousness and subverts the rule of law. This degeneration of governance is illustrated by the Illinois legislature's transfer of income from some disfavored riverboat casinos to racetracks…

George Will possibly has this one wrong. 

Many states are increasing tax rates on gambling franchises in order to benefit other gambling franchises. This is especially true in jurisdictions which now allow casinos. Previous to the grant of these gambling casino licenses, racing was the main gaming venue in the community. Not only did this allow individuals to gamble, but it provided an opportunity for racing to prosper. With casinos, all this has changed. George Will would have one believe that detaxation of the casinos for the benefit of the racetracks is an improper act. However, what is not understood is that these gambling casinos have licenses which are grants by the government, not property rights. 

All too often, individuals lose their property rights and are not fairly and fully compensated. Businesses severely interfered with by governmental action are often treated with disdain, commonly having to deal with the issue that these damages are too speculative for them to be paid and therefore, no damages should be paid at all.

In this circumstance, we have something analogous to what are called "grazing cases" in the federal sphere. In the grazing areas throughout the Rocky Mountain states, ranchers have relatively small tracts of land which are not large enough to suit grazing. However, when the government provides federally-owned grazing lands at a relatively low price, successful cattle ranching activities may occur. When these ranches are condemned, owners attempt to claim that the compensation should include their beneficial grazing rights that they have obtained from the federal government. Courts have consistently held that the grazing is simply a license and the federally-owned land should not be considered as part of the parcel.

Relief has been granted in certain circumstances by legislative action. Nonetheless, what is the difference between ranchers who do not own land, but want to be compensated, and those who receive the benefit of a gambling license?

 

Congratulations

The second Suffolk native appointed to a Hampton Roads judgeship in February said his ambition since law school has been to sit on the bench.

“It’s something I decided I wanted to do while I was in law school,” said Philip Infantino III, who attended Washington & Lee University School of Law, graduating in 1991.

His aspiration to the bench developed as he worked for local law firm Pender & Coward during the summers while he was in law school, he said.

“At that time, I decided I did not enjoy the practice part of law as much as I did the intellectual kind of law,” he said.

In practicing law, Infantino said, it is sometimes difficult to reconcile personal beliefs with a client’s best interest. He has concentrated almost exclusively on eminent domain law during his career.

“Everything you do is adversarial,” he said. “You have to take a position whether you believe in it or not.”

By contrast, being a judge will allow him to be in the position of studying the law and determining the intent of the law.

“I just like reading law and figuring out, ‘What’s justice, what’s right?’” he said. If he had never made it to the bench, he would likely have wound up being a law professor at a university, he said.

Infantino watched the General Assembly vote on his appointment via Internet on Feb. 28. He will take the bench in Chesapeake’s General District Court on April 1 – earlier than most other new judges, since his seat has been open since November. In fact, he already has been substituting as a judge in that position, anyway.

“It should be a rather smooth transition,” he said. “They needed to get somebody in there pretty quick.”

Suffolk attorney Dave Arnold will take over Infantino’s cases.

“I’m very excited to serve,” Infantino said. “It’s a great honor.”

Congratulations to a great eminent domain lawyer.  May you represent our society as well as you represented your clients.
 

 

Preakness facing Eminent Domain

Southern Maryland

Gov. Martin O'Malley proposed legislation Wednesday aimed at increasing the state's power to keep the Preakness Stakes in Maryland, despite potential legal challenges stemming from the race owner's recent bankruptcy filing.

The bill, which has the support of legislative leaders, gives Maryland the authority to acquire the Preakness and the two major horse racing tracks in the state through purchase or eminent domain as a last resort. Canada-based Magna Entertainment Corp, which owns the Preakness, Laurel Park and Pimlico Race Course, filed for federal bankruptcy protection in early March.

Eminent domain is the legal and compensated taking of private property by the government for a public use.

The bill also authorizes the Maryland Economic Development Corporation to issue bonds to purchase the rights to the Preakness and the racetracks.

Existing Maryland law gives the state first right of refusal if the Preakness is sold, but Magna's bankruptcy filings have clouded the issue of whether the provision would still be recognized in court.

In late March the state filed motions with the U.S. Bankruptcy Court in Delaware, where Magna has filed for Chapter 11 protection, to affirm its legal right to purchase the Preakness. Attorneys for the state remain hopeful that the federal judge will recognize its right of first refusal.

But Austin Schlick, the chief of litigation in the attorney general's office, said the state has also been working with Magna's attorneys and that he is "optimistic" the two parties can reach an agreement recognizing the state's right to hold on to the Preakness.

In light of the potential legal hang-ups, O'Malley said the bill gives the state the "maximum amount of flexibility in order to protect the state's best interests under any scenario."

Schlick said the state is wise to push the legislation at this time. Maryland does not understand what it is getting into when it attempts to acquire the horse track. The bankruptcy adds a layer of issues. Good luck. After all, the highest and best use may be a use other than as a race track!

The State is on the one hand omnipresent, but on the other, it is limited by its own constitutional delegations and limitations. Maryland could be in a position which it pays far more than it thought would be required.

Surely, the take will need to be a 'slow take' or the State runs the risk of raiding its own treasury out of pride.  

Difficulty of obtaining tenants

 

Daily Herald

The former owners of an Arlington Heights strip mall sued the village in federal court Friday, seeking more than $5 million for losses allegedly due to the village scaring tenants away.

Ron Popp and Victor Valenti bought the Arlin-Golf mall, a short strip of stores off Arlington Heights Road just north of Golf Road in June 2001, said their attorney Joseph M. Williams.

Contrary to reassurances given by the village before the pair bought the property, Williams claims, the village announced six months later in January 2002 it was creating a tax increment financing district to redevelop the mall and the adjacent International Plaza at Golf and Arlington Heights Road.

In the meantime, Popp and Victor had put money into fixing the place up, which increased the occupancy rate to about 74 percent, Williams said. But the suit claims that village representatives repeatedly told prospective clients they were 60 to 90 days from taking the land by eminent domain and leveling the buildings.

In one case, the suit claims, a tenant the pair managed to land was told by the village that the municipality actually owned the land, which was not true, the suit claims.

Meanwhile, the suit claims the village paid one tenant, Bangkok Cafe, $30,000 to relocate, and other tenants fled, fearing the mall was doomed, Williams said.

Even though the pair could not retain tenants, the taxes on the property went from $27,000 when they bought to $60,000 when they sold late last year.

The village eventually paid $1.6 million for the Arlin-Golf mall, which the suit claims was less than its true $2 million value. Williams claimed Popp and Valenti sold only because of financial threats the village made against them and the fact that they were on the verge of financial ruin.

Additionally, the suit seeks over $5 million in lost rentals and other expenses.

The difficulty of obtaining tenants when an owner faces the prospect of condemnation is overwhelming. The eminent domain process is difficult under the best of circumstances. However, when one does seek rental reimbursement the local statutes and laws must be closely followed.

 

The Costs of Eminent Domain

Farmington Independent

For months, area electric utility companies Great River Energy, Xcel Energy, along with nine others from the Dakotas to Wisconsin, have held public meetings to explain a proposed power line expansion project called CapX2020.

But a group here in Dakota County is not buying into it. In fact, the Citizens Energy Task Force argues parts of the project are simply not needed. CETA backers say the proposed 345 kilovolt power line that is proposed to come through parts of Eureka and Castle Rock townships and end in Hampton could pose health problems, and certainly decrease property value.

Perhaps most of all, though, CETA members want to make sure that landowners along the route are fairly compensated for the land that the utility companies will acquire for construction of those power lines.

But one of the biggest issues Maccabee and Topp see landowners facing is their ability to be appropriately compensated for the land the utilities group will acquire for construction of the power lines.

The concept is not a foreign one to the area. In 2007, a group of Empire township residents took Great River Energy to court over a 115 kV power line. One homeowner had initially been offered $14,600 for the easement by Great River Energy, but after an appeal received $55,000. The only problem was, a chunk of that award went to the lawyer who fought for the group.

Topp and Maccabee would like to see something built into the state’s laws that support landowners’ rights, but any such legislation did not get introduced this year, Topp said.

Local owners fighting with low transmission companies seem to be endemic to the system. Making the system fair to the affected owners is difficult.

The costs to the individual owner can be overwhelming. 

Eminent Domain for Transmission Lines

 

Las Vegas Sun

Even snippets of comments by Senate Majority Leader Harry Reid can make big news. Entire stories are written from sentence fragments grunted in a hallway.

But Friday morning, Reid had time to expand on his thoughts for nearly an hour at a breakfast with more than 30 journalists. It was a fresh opportunity for the nation’s reporters to see Reid unplugged.

He put on quite a show. As his autobiography reminds, Reid offers flashes of wit, impatience and steeliness. Friday, he touched on the war in Afghanistan, AIG bonuses, Supreme Court Justice John Roberts’ truthfulness and his own reelection in 2010.

He also told the journalists they should eat healthier breakfasts.

Here are highlights, condensed and occasionally paraphrased for clarity:

Eminent domain for electrical transmission lines.

We need to have a public highway for electricity. We’re going to have to have eminent domain — that’s condemnation.

U.S. Senator and Majority Leader Harry Reid is blunt. Eminent domain will be used to construct the power lines for the grid. The problem remains who decides where it goes....should it be decided on the State or local level or by the Federal Energy Regulatory Commission?

 

Veto override

Clarion Ledger
Lawmakers in the Mississippi House voted overwhelmingly today to override Gov. Haley Barbour’s veto of a bill that strengthens Mississippians’ property rights.

The attempt to override Barbour's veto of House Bill 803 received support from 101 lawmakers, and 19 voted against it. Senators have not made a similar attempt.

The legislation restricts the use of eminent domain to direct public use, with a few exceptions. The government uses the procedure to take private property for certain projects.

Barbour, a Republican, has said the bill would hurt the state’s attempts to attract major economic development projects that provide jobs.

“I don't even believe in overriding the governor except in an extremely exceptional circumstance,” State Rep. Jessica Upshaw said as she urged her colleagues to override Barbour’s veto. “The individual landowner’s rights are something that should not be taken by our government for big business or anyone.”

The veto override requires an emotional and persuasive reasoned act by a legislative body.

Pipeline ten feet from building

6 ABC

In Chester County, it's a fight over eminent domain between 36 homeowners and a natural gas company.

The plan is to replace a 50-year-old natural gas pipeline that goes through Chester County. The problem is that when the pipeline was built back in the early 1950's this was all farms and forests now it's East Caln Township.

Lou is one of the neighbors fighting the Williams Transco Company's proposal. That's primarily because the plan puts a new, larger pipeline right through his property not 10 feet away from his garage. And Lou says that while the company says it's willing to discuss options, he already received legal papers claiming eminent domain over his property.

"That's putting a gun and saying 'let's talk' I have a hard time talking with a gun to my head."

This is a very harsh result. A pipeline ten feet from a building violates every basic safety requirement. One has to wonder whether the owner ever raised the issue during the Environmental Assessment phase.

Maryland Breaks New Ground

Hometown Annapolis

A plan proposed this week by Mayor Ellen O. Moyer to use eminent domain to break the lease for the near-vacant Market House caught some by surprise.

City officials took the first step in that process by sending a notice yesterday to Site Realty Group, the Silver Spring company that holds a 20-year lease on the historic City Dock building, that it defaulted on its lease by failing to pay rent and by failing to keep the facility filled with vendors.

Moyer and city officials said the city is exploring whether to repossess the building by using the rarely invoked process of eminent domain.

"(Funky) is an apt way to describe" the maneuver, said Jack Morkan, an attorney representing several vendors that are suing the city and Site Realty in county Circuit Court for lease breaches.

Morkan said he did not hear about the city's eminent domain plans, which Moyer unveiled in her State of the City address at City Hall Monday night, until a reporter from The Capital contacted him.

"The city is a constant source of amusement," he said. "I don't think they'll find any support for this in Maryland law."

Site Realty officials could not be reached for comment.

Eminent domain allows the government to seize land or a building for public use or, at times, to make way for economic development. The court system determines the fair value the government must pay in order to take over a property.

Maryland is still open in allowing governments to take for purposes the government sees as 'public use.' However, there is the shocking relief available to the owner, known as 'just compensation.' The government might more than it wants, like a big bill.

City of Rogers Files Eminent Domain

NWAnews.com

With negotiations stalling, the city of Rogers is going through with its threat to use eminent domain at the Rogers Municipal Airport.

The city was negotiating with four leaseholders who controlled three hangars at the airport. Dealings with two of the four have proven unsuccessful.

Deputy City Attorney Jim Clark filed one suit against Lemore Inc. in circuit court Monday. Attorney Tom Kieklak was expected to file a similar suit against Mike Moser on behalf of the city because of a relationship between Moser and the city, but Kieklak was unavailable for comment.

The airport is currently expanding its taxiways, thanks to Federal Aviation Administration grants, and the hangars involved in the suits are in the way of the expanded taxiway A. In both cases, the city offered the leaseholders 115 percent of the appraised value of their lease and their hangars, which is the threshold for FAA reimbursements. City Attorney Ben Lipscomb said negotiations failed, even though the leaseholders did not provide the city with counter-appraisals.

The eminent-domain lawsuit would allow a court to determine the fair value of the properties. In February, when the City Council approved the use of the lawsuits, Mayor Steve Womack said the FAA might be willing to reimburse more than 115 percent of the appraised value if such an amount was awarded by the court.

Airport expansion and hangar valuations are technical and have many pitfalls for which improper values and effective "low balling" of owners with unfairly low appraisals and offers are commonplace. 

Problem Communities Face

South Bergenite

Cherokee Porete no longer plans to move Arlington Valley forward. The redevelopment project aimed to transform a string of light industrial businesses along Porete Avenue in North Arlington into 1,625 homes, retail space and parks.

The developer officially abandoned its plans during a superior court hearing on March 3. Even though the project will not move forward, Cherokee Porete seeks unspecified damages from North Arlington. The redeveloper claims it spent $39 million on legal and engineering fees, among other things.

The project went sour in December 2006, when the developer sued the borough for allegedly failing to take the Porete Avenue businesses through eminent domain and hand them over to the developer, which was a stipulation of the redeveloper's agreement signed by former Mayor Russell Pitman in April 2006.

Additional court dates were scheduled for this week and Superior Court Judge Jonathan Harris will render a written decision another month or so after closing arguments. If North Arlington loses the case, borough attorney Anthony D’Elia has vowed to appeal the case.

Harris hinted at the possibility of a draw. "There could be a situation where nobody breached," he said.

This is the problem communities with failed eminent domain projects face. If things do not go well, they simply buy themselves a lawsuit and commensurate credit woes when the condemnation efforts fail.

New Power Lines

CQ Politics

Moving electricity generated by solar or wind power from sun-drenched deserts and windswept plains to energy-thirsty cities and towns will require thousands of miles of new power lines, many of which could cut across private property.

That, advocates say, will require strong direction from the federal government — including seizing land through the government’s “eminent domain” power.

“Renewables without eminent domain will not get to market,” said James Rogers, chief executive of Duke Energy Corp.

Planning electric transmission has traditionally been a state and local function, leading to a national grid that critics describe as a conflicting patchwork of regional systems.

Senate Majority Leader Harry Reid , D-Nev., has introduced legislation (S 539) that would authorize the federal government to supersede state and local authority in siting for thousands of miles of new power lines, as part of a broader effort to boost renewable-energy production.

This article discusses the issues related for the need to national coordination and construction of power lines. One has to wonder how to balance the rights of individual communities and citizens in the path of the proposed lines against the notion that the only good grid is determined in Washington.

How do you value a corridor?

Trading Markets

While city officials work to raise $40 million to buy the old Norfolk Southern rail line, a city appraisal says the land is worth much less.

The city won't release the appraisal, citing "ongoing negotiations," but officials familiar with it said it values the corridor, the likely route for a light-rail project, at about $6 million. The assessed value of the rail line -- the amount Norfolk Southern pays taxes on -- is $7.3 million.

The $40 million asking price is about what a 2003 Norfolk Southern appraisal determined the land was worth. The line is 10.6 miles long and 66-feet wide., crossing the city from Newtown Road to Birdneck Road.

City officials are trying to pull together $40 million in local, state and federal money. The City Council has informally agreed to put up $10 million.

Mayor Will Sessoms, a light-rail proponent, said the Beach is close to a deal with Norfolk Southern. So debate over what the land is worth, which stalled past negotiations, may be moot.

This is an interesting issue. How do you value corridors? First one should look to the title to determine whether the corridor is held in fee or easement. If in easement, what are the limits of the easement? It is difficult to ascertain the extent of the interest from the article.

California Court gets it right

Metropolitan News-Enterprise

A public entity’s failure to specify—in the resolution of necessity—the public use to which property taken by eminent domain is to be put cannot be cured by putting the land to public use after it is taken, the Third District Court of Appeal ruled Friday.

The justices faulted the City of Stockton for the manner in which it took two parcels on the North Shore of the Stockton Deep Water Channel as part of a plan to develop a multi-use complex, including an arena and minor league baseball park.

They reversed a final judgment and awarded litigation expenses to the former owner, Marina Towers LLC. But they concluded that it would be equitable to allow the city to pass a new resolution of necessity.

All too frequently, governmental authorities self perpetuate the thought that they do not have to rely upon a statutory delegation in order to condemn property. The California courts got it right in this case.

Taking of public use for another public use

istockanalyst.com

The U.S. Court of Appeals has thwarted James Lichoulas Jr.'s attempt to block Lowell officials from taking much of his Appleton Mills complex by eminent domain.

In a decision issued last week, the federal appeals court ruled that a lower court was correct when it rejected Lichoulas' lawsuit, in which he challenged the city's legal right to take by eminent domain the Appleton properties, which includes a defunct hydroelectric power facility designed to generate electricity from the water flow between the Pawtucket and Hamilton canals.

City councilors voted to take Lichoulas' land in April 2006, paying the property owner $2.5 million as compensation for nearly half of the land in what city planners call the Hamilton Canal District project, including the area slated to be occupied by a $175 million state judicial center. Lichoulas argues that amount was inadequate.

Meanwhile, the Federal Energy Regulatory Commission last March 2008 terminated Lichoulas' license to operate the Appleton Mills hydroelectric power project, as that facility is non-operational and has fallen into ruin along with most of the rest of the dilapidated mill complex.

But Lichoulas argued that the revocation of the license is irrelevant because state law assesses the legality of takings at the time the property is seized. The fact that the license was pulled after the taking cannot "taint the taking," he wrote.

He and his attorneys also have alleged that the Federal

Power Act of 1920 prohibits the City Council from using its eminent-domain powers to take the nearly 7-acre swath of land in question because a portion of it was licensed by the Federal Energy Regulatory Commission in 1986 for use as a hydroelectric plant.

The taking of already existing public use for public use has its own set of rules. Generally, there is a requirement that the sate legislature make a specific grant for a taker to take property already being put to public use. An electric plant would be such a public use.

Additionally, a basic tenet of law is that federal acts preempt state action. Here, there is no use. The property is not being used as a hydroelectric plant

Limits Placed on Eminent Domain

WLBT 3

If it's passed, a bill currently in the state senate could strengthen property rights for Mississippians. But could it also stunt economic growth for the state? 

During the 2008 legislative session, Jackson State University hoped a bill giving them "quick take" ability would pass so they could take advantage of tax credits for land development near campus. It died in committee.

This year, Senator Joey Fillingane hopes to toughen state law when it comes to eminent domain purchases.

"Under this current status of this law, you would not be able to take private property from a citizen and give it to a private developer simply to try to increase tax revenue," said Senator Joey Fillingane, (R) Sumrall.

David Wade at Mississippi Farm Bureau says it gives property owners true protection.

"It excludes everything but a true public use and that includes ... highways, it includes schools, it includes public utilities," said Waide.

But if the bill was law a few years ago, Senator Walter Michel says Mississippi would never have gotten the Nissan or Toyota plants. Michel considers employers that create hundreds of jobs beneficial also.

Mississippi is having the same problems as so many other States. When a limit is placed on eminent domain will that stop development? Is the community’s desire for a private development more important than private property ownership?

Eminent Domain and Agriculture

 

Daily Gazette

CAPITAL REGION — Figures released Wednesday show that six counties in the Capital Region shed more than 58,000 acres of farmland and lost 104 farms between 2002 and 2007.

Results in the USDA’s 2007 Census of Agriculture show Schoharie County experienced the biggest loss in farms while Montgomery County lost the greatest amount of acreage in the five-year period.

Saratoga County, however, stands alone in the region, with increases both in the number of farms and acreage.

Albany County increased the number of farms but experienced an overall loss in total farmland.

The census reports that Montgomery County had 624 farms in 2002 and lost 20 in the five-year period ending in 2007 — but some officials in Montgomery County on Wednesday said they don’t believe there’s been such a widespread loss of farmland.

In terms of land, the agricultural census shows Montgomery County lost 27,421 acres, leaving the total 2007 acreage at 124,556.

Schoharie County lost a total of 54 farms and 17,245 acres of farmland during the period, representing a 9 percent loss in farms and 15 percent loss of farming acreage, according to the census.

“It’s been a long-term trend. I’m saddened,” Schoharie County Planning Director Alicia Terry said Wednesday.

Farming is considered the primary industry in Schoharie County and Terry said efforts to preserve farmland at the local level can only do so much.

Schoharie County has a countywide farmland protection plan and it was the first county in New York state to develop agricultural districts.

Limitations on eminent domain in agricultural areas are a two sided coin.  On the one hand, protection of the resource is maintained.  However, one has to wonder whether this takes away the private ownership rights of the individual owner, who may be limited in utilization of the property for other than agricultural use.

Northeast Pennsylvania Transmission Line

Scranton Times

PPL Electric Utilities is seeking state regulator approval to use eminent domain to acquire more than a dozen sections of right of way still needed for a proposed $510 million transmission line through Northeast Pennsylvania.

In eminent domain applications filed this week with the Public Utility Commission in Harrisburg, PPL said it has been unable to reach right-of-way and easement agreements with 14 property owners — seven in Lackawanna County, six in Wayne and one in Monroe — although negotiations continue.

“We will be very happy if we don’t have to go to court on any of these properties,” PPL spokesman Paul Wirth said Friday. “We hope to reach agreements with as many (property owners) as possible.”

PPL applied to the PUC earlier this month for permission to construct a 101-mile, 500-kilovolt line from its Susquehanna substation near Berwick to the Delaware River near Bushkill. The project is part of the proposed $1.2 billion Susquehanna-Roseland interstate power line.

It is not a surprise that there are fourteen owners contesting a take. For the most part, the utilities try to do it right. However, sometimes they just 'miss the mark' and do not understand the damage being done to the property. Then, the owners have to contest and object, facing the forced acquisition process.

National Electric Act

CS Monitor

To justify taking homes and farms to build the Interstate highway, President Eisenhower cited a security need: Military vehicles must move fast in case of war. Now President Obama, citing a need to curb global warming, wants new transmission lines across America to carry electricity from carbon-free energy sources. Will he also use federal muscle to take people's land, even wilderness?

The question hangs like a sparking high-tension wire over Mr. Obama's plans to plow $11 billion – part of his economic stimulus – into a "smart grid," which is critical to his ambitious goal to curb fossil fuel use by 2020.

Even without a need to help renewables transmit electrons, the nation's electric grid needs an upgrade. Its structure hasn't changed much from the days of Thomas Edison. Blackouts, such as the big one in 2003 that left 50 million people in the dark, are increasing. Its 164,000 miles of lines and 9,200 generating plants are ill-equipped to accept power from small-scale sources such as wind, geothermal, and biomass.

Yet Obama wants to double renewable energy within three years and bring it "to every corner of our nation." Without smashing through local resistance and environmental concerns to new transmission lines, he's unlikely to reach his goal.

One problem is that the best sites for renewables are generally not near major cities. Sun is plentiful in the Southwest and wind in the Great Plains. Most Americans live near the coasts.

The great (and well founded) fear is that the national government will take the place of the state and its local agencies in making decisions.

This could be a serious long term destruction of the federalism process used through the years in the placement of the electric grid. The authority was granted by the legislation three years ago, and now its dangerous engagement is about to take place.   

Columbia University Challenge

 Observer

The owner of a set of storage buildings in West Harlem, Nick Sprayregen, has filed a lawsuit challenging the state’s use of eminent domain, he said this afternoon. The state has commenced actions to acquire the properties in connection with Columbia University’s planned 17-acre expansion in the area.

In Mr. Sprayregen’s 107-page petition, he challenged the state’s actions as unconstitutional, alleging the development is not intended for civic use. The petition claims that the area is not blighted, as required by law; that the studies demonstrating blight were highly flawed; and that the public approval process was rigged.

Among other claims, Mr. Sprayregen, the owner of Tuck-it-Away Storage, said that the city and state collaborated secretly more than five years ago to determine a strategy for the project, and quotes email excerpts that suggest some skepticism on the part of a city official about the process.

“Where a development agency colluded with a developer to drive out businesses,” the petition says, “vacate buildings, and then run them down, and then hired the developer’s own consultant to give the agency the basis for a blight finding, this case raises the questions of the proper limit of judicial deference to agency determinations.”

Colleges and universities have consistently and historically been treated as "public" for 'public use' purposes. What has occurred in many jurisdictions is the specific constitutional delegation for State University eminent domain actions. Frequently, there have been specific statutory delegations pursuant to a constitutional delegation empowering condemnation upon legislative grant. The Columbia University challenge will likely be peremptorily dismissed. 

A Risky Approach

iStockAnalyst

Getting rid of Unitil following the December power outages will be easier said than done, State Rep. Stephen DiNatale, D-Fitchburg, said this week.

DiNatale said all of the options under consideration will cost cities and towns a lot of money.

"That's the reality of it," DiNatale said. "You simply can't take over a company."

Leaders in the four Massachusetts cities and towns served by the Hampton, N.H.-based utility are all working to get rid of the company.

Townsend and Lunenburg are forming committees to study the feasibility of either starting a municipal utility or finding another alternative to Unitil.

Ashby selectmen want to push the state Legislature to allow for competition between utility companies and two Fitchburg city councilors are pushing an effort to take the city's electrical system from Unitil by eminent domain.

All four communities lost 100 percent power during the Dec. 11 ice storm. It took more than two weeks in some cases before the power was completely restored, prompting complaints about Unitil's response to the crisis.

The Massachusetts Department of Public Utilities formally opened its investigation into Unitil's response this week.

The DPU will hold its first hearing at the Memorial Middle School in Fitchburg at 4 p.m. on Jan. 27.

Representatives with National Grid and Unitil declined to comment on the efforts to remove Unitil from the area…

Here, we have a writer simply assuming that payment of fair market value “will not be a problem” because the community will control the utility it desires to take over. This is a short sighted and risky approach.

"Free"port

The Facts

The Economic Development Corp. and City Council will have a joint meeting to discuss all the issues and delays that surround the Freeport marina project.

At a meeting Thursday, corporation members approved a request by Mayor Larry McDonald to come together at 6 p.m. Jan. 20 and offer information about the project’s legal pitfalls and expected final price tag.

“I wanted to air out all the troubles that they’ve had and get everything back on page one,” McDonald said of the corporation. “I want the public to know what faults that they’ve found in the project.”

McDonald said the project’s tab could be significantly more than its original budget of $6.8 million, but he declined to elaborate. Corporation President Dan Tarver estimated a cost of $7.75 million.

Officials began discussing the marina project almost a decade ago with the idea it would help jump-start a revitalization in the port city. But since then, people in town have debated its need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

The last eminent domain battle against the city is with Freeport-based companies Western Seafood and Western Shellfish. Attorneys for those companies, owned by the Gore family, discussed a settlement with corporation officials during closed session Thursday.

Though both parties declined to elaborate on the discussions, Tarver was positive a settlement could be reached at the corporation’s next meeting.

“We think we’ve got a settlement,” Tarver said. “We think we’re on the verge on signing off on dropping everything with Western Seafood.”

Help! If this settles, making fun of the Gores will cease. Freeport truly lacked the first syllable of its name "free" in the whole transaction.

Electric Takeover

Naples News

MARCO ISLAND — A visit by Florida Municipal Electric Association’s executive director, Barry Moline, has some members of the city’s electric municipalization committee going back to asking why the city should buy the utility, Lee County Electric Cooperative.

Moline advised that Marco should probably not buy the city’s electric service provider, with the primary goal of reducing rates.

The idea led many members to ask why would the city purchase LCEC, or take it over by eminent domain, if rates would stay the same or increase.

“I say we need to go back to that initial point of do we have a reason to do this. I understand the reason is to gather facts, but without a purpose all we end up with are loose facts,” said Al Musico of the committee.

Committee member Steve Stefanides reminded the group that LCEC’s “outrageous” estimate for undergrounding was a driving force for city officials to begin looking at takeover of LCEC as early as spring 2008.

Some believed lower rates were the impetus.

Many communities seek the takeover of fairly managed private utilities. Hopefully, this is not an attempt to find a new system of patronage of a kind which use to exist at airports.

The fight continues

WDEL 1150 AM

A Wilmington auto repair shop owner says he'll try again to get the General Assembly to pass a bill limiting the government's power to seize properties under eminent domain.

Ed Osborne told WDEL's Delaware Afternoon News the legislation is actually a combination of 2 bills.
Audio Here

Osborne, whose shop on "A" Street is on the city's eminent domain acquisition list, says the bill would limit eminent domain seizures to public use projects, like roads or schools.

The bill was vetoed by Governor Minner at the end of the last legislative session, but Governor-Elect Markell said last summer during his campaign that he'd proudly sign the measure into law.

The Kelo fight continues. One thing legislators should be aware of is that if private property rights are trampled as part of the challenge process, there is a greater likelihood that when passed, the legislation is likely to be more stringent on governmental activities.

Court Rules Against Pipeline

East Valley Tribune

The owner of a single piece of property is standing in the way of a new natural gas pipeline to serve central Arizona.

And a federal appeals court won't force the issue - at least not yet.

Without dissent, the 9th U.S. Circuit Court of Appeals has rejected efforts by Transwestern Pipeline to get immediate possession of properties in the path it seeks for its 260-mile pipe.

The judges said the company may eventually be allowed to condemn the property. But they concluded that the private company cannot take immediate possession until it gets a court order.

That requires a hearing where the landowners have a chance to challenge both the company's need for the property as well as whether Transwestern is meeting its requirements to negotiate in good faith on the price.

The court ruling is the latest setback for Transwestern, which has faced opposition in its bid to complete the $700 million project that is designed to connect central Arizona with the company's main pipeline that carries gas from New Mexico across northern Arizona.

Transwestern spokesman Jerry Herenden said the 280-mile spur eventually will carry 500 million cubic feet of natural gas to the Valley each day.

The interesting proposition of the subject of the article is the appropriate recognition by the federal appellate court that Due Process applies to the rights of individuals and recognition that eminent domain statutes must be followed.

Landowners fight over gas storage

Fulton County News

Some southcentral Pennsylvania landowners fighting an eminent domain lawsuit to take their lowground mineral rights for an underground natural gas storage field say they feel they never had a chance to have a say on what happens to their land.

"It's always almost a done deal before landowners can get in there and do anything," said Sandra McDaniel, one of the landowners in Bedford county.

The 10 landowners fighting the Steckman Ridge gas storage field say they believe they could get far more money from exploration companies interested in drilling in the Marcellus Shale rock formation.

The thick, black shale lies more than a mile below much of Pennsylvania and some expect it to become the nation's biggest gas-producing reservoir. Already, many of the country's largest gas exploration companies are rushing to Pennsylvania to drill on the Marcellus Shale. Exploration companies have given some landowners across Pennsylvania several thousand dollars per acre for the right to drill down to the Marcellus Shale, and as well as the promise of potentially hundreds of thousands of dollars or more in royalties from a successful well.

But during early negotiations, the 10 Steckman Ridge landowners received a top offer of $400 an acre from the group that wants to build the storage field, landowners said.

Last year, Houston-based Spectra Energy Corp. and New Jersey Resources of Wall, N.J., formed a joint venture to build the Steckman Ridge gas field, saying it will help supply gas to the heavily populated Northeast and Mid-Atlantic states.

In June, the Federal Energy Regulatory Commission approved the companies' application to build and operate the field in a process that the landowners say was far too complicated for an average citizen and virtually shut them out.

A month later, the companies sued the 10 landowners in federal court in an effort to force them to agree to a price, citing federal law that permits the use of eminent domain for natural gas projects.

The companies already had the below-ground storage rights for much of the land they needed after they bought the rights from an exploration company that had drilled there in recent years. McDaniel and the other nine landowners still owned their gas storage rights, and say Spectra Energy has not dealt fairly with them.

Susan Waller, a Spectra Energy vice president, said the company is not using eminent domain as a negotiating tactic and would rater settle out of court with the landowners.

"We've talked to everybody and we've tried," Waller said. "At this point, we'd give anything if we could settle with them. They can still settle with us. We can still resolve this."

A federal judge has not decided on a compensation amount. The field is expected to be completed in the first half of 2009.

This is a fascinating article. Why? Because it shows you how well a PR person can tilt the truth in order to make the reader illogically come to an irrational result. If Ms. Waller's principal would so readily 'give anything', why not just fair value?

Court Considers Mineral Rights

GJ Sentinel

The Colorado Court of Appeals is considering a lawsuit questioning whether the state owns mineral rights beneath land it condemned for construction of Interstate 70 east of Rifle.

Gypsum Ranch Co. LLC appealed the case after Ninth Judicial District Judge James Boyd issued a summary judgment in January in favor of the Colorado Department of Transportation.

At issue are leases for oil and gas beneath about 70 acres the state acquired from Agnes Hunt. Although the state took over the land in 1975 through condemnation, it took more than a decade for the state and Hunt to reach a settlement over fair payment for the property. The state paid $110,000.

Gypsum Ranch contends that when it later bought the Hunt estate, it became owner of the mineral rights beneath the condemned right of way. It maintains that eminent domain includes only the subsurface estate needed for support of highway features built on the right of way.

Gypsum Ranch also has sued Antero Resources, which has been drilling for natural gas between Silt and Rifle. Antero land man Bill Pierini previously has said the company executed leases with both Gypsum Ranch and CDOT, to ensure it didn’t proceed with drilling only to find out later it didn’t have a proper lease. Antero suspends lease payments in such cases until the dispute is resolved.

Pierini said that as a general rule, CDOT doesn’t own the mineral rights beneath the highway where Antero is drilling.

However, Boyd wrote in his judgment that CDOT employees said in affidavits that the agency commonly obtained both surface and mineral estates in the 1970s and 1980s, except where prior owners expressly reserved the mineral estates.

Boyd found that nothing in the Hunt condemnation order or record of proceedings distinguished between the surface and mineral estate.

More recently, mineral rights have received more careful attention and become far more valuable in western Garfield County, thanks to the arrival of widespread natural gas development.

The Hunt condemnation proceedings included a substantial dispute over the value of gravel deposits, and Hunt’s contention that they must be considered as part of the condemnation, Boyd wrote. Those deposits are part of the mineral estate, he wrote.

Each State has an individual statutory framework dealing with ownership rights retained by the condemnee when property is taken for right of way. It may be argued that the mineral rights are not needed for the right of way, therefore they are retained by the owner losing surface rights for the roadway. Therefore, most States maintain a statutory framework delineating what is being take and what, if anything, is being retained.

NYRI Powerline

Wayne Independent

The Upper Delaware Council, Inc. (UDC) delivered testimony at a November 5 public hearing convened by the New York State Department of Public Service in Hancock to gather input on the application by New York Regional Interconnect, Inc. (NYRI) to construct a high voltage direct current transmission line on a 190-mile path between Marcy and Rock Tavern, NY.
The New York State Public Service Commission (PSC) will determine by August of 2009 whether to grant NYRI a Certificate of Environmental Compatibility and Public Need for its proposed $2.1 billion power line.
The two Administrative Law Judges assigned to the case, Jeffrey Stockholm and Michelle Phillips, agreed to hold 13 public information forums between October 20 and November 6 in the seven New York State counties affected by the proposed route to personally hear statements and create a record for their review.
The UDC was represented at three of the hearings which took place on Oct. 29 at the Delaware Community Center in Callicoon and Sullivan West Central High School in Lake Huntington, and on Nov. 5 at Hancock Central School in Hancock.

A valid claim of a power line being the cause of substantial environmental damage may be the only defense to the overwhelming power to utility project routing. The Congressional delegation is clear in the public policy support for utility expansion in order to improve the power grid. We can only hope that the profit making endeavors of the utilities will recognize the damage they cause to individual owners and the dangers to the environmental well being of the community.

Authority to Condemn

Law.com

Cliffside Park, N.J., filed a condemnation complaint in November to gain ownership of a private property in Fairview, N.J., it is renting for a Department of Public Works facility.

The complaint offering $1.3 million for the property says Cliffside Park needs the land and garage as an interim facility until Cliffside Park and Fairview build a planned joint DPW facility in another part of Fairview with a county grant -- a project in the works since 2003.

A provision of state eminent domain law, N.J.S.A. 40A:12-4(a) gives towns authority to condemn and obtain ownership of property in other municipalities, and Cliffside Park is claiming that right in its complaint, Borough of Cliffside Park v. Pedigree Holding Group, Ber-8236.

The property owner and Fairview concede that extra-territorial condemnation is permitted by law. But they are fighting Cliffside Park on grounds that the statute can be used for takings by a town outside its borders only in limited and special circumstances, and only with the permission of the town where the property is located.

Typical examples are when a town with a reservoir in another municipality needs to acquire land to protect the water or when a property immediately across a border is needed to preserve access, they say.

The issue has come up so rarely there don't seem to be precedents on point about the legality of what Cliffside Park is trying. Anthony Della Pelle of McKirdy & Riskin in Morristown, N.J., who represents the property owner in the case, says "one town may not generally use eminent domain to acquire real estate in another town.

Many State constitutions grant governmental entities the authority to condemn outside the geographical limits of the community. One is required to read the constitutional grant. The legislation must be looked at to determine whether the specific delegation to acquire by eminent domain exists in the statutory language.

Landfill Acquired

Orlando Press

Despite years of public disdain for the government’s ability to acquire private property through the power of eminent domain, county lawmakers pushed forward to own the land encompassing the county landfill near Artois.

With little fanfare, Glenn County Supervisors reauthorized the county’s use of eminent domain law Tuesday to obtain the land it leases and the additional property at the north end of the landfill.

“Whenever you’d mention eminent domain, you would have a public outcry that was deafening,” said Supervisor Tom McGowan. “That we’ve had no comment now indicates that we are doing the right thing.”

Glenn County Planning Director Dan Obermeyer said the county has tried to negotiate a fair price for the land with owners Patrick Foley and Robert Fumasi, but no price could be agreed upon. The landowners could not be immediately reached for comment.

Obermeyer said the county could expect to pay about $650,000 for the 451 acres.

The land was last appraised at $450,000 several years ago.

Obermeyer said the value of the land will eventually determine “just compensation,” but that the owners may argue for a higher determination before a judge.

Purchasing a landfill sounds simple. The community thinks it is 'near capacity', fully knowing it can be expanded, placing the citizens at great risk of a substantial just compensation payment.

 

Landfill Value

STPNS

After spending the good part of a couple years sending offers back and forth, commissioners authorized eminent domain proceedings a few weeks ago on a property housing an old landfill site.

Monday, the landowner and his attorney met with commissioners to discuss the situation in person.

Wabaunsee County Commissioners and property owner
Winston Amick, represented by Attorney Keen Umbehr, have been debating the fair rental rate for the property, which KDHE is requiring the county to maintain until at least 2026, with the potential for that requirement to be extended.

After several offers back and forth with no resulting conclusion, commissioners authorized the use of eminent domain to acquire the property, according to County Attorney Norbert Marek, who said that the response since that action has indicated that they would rather sell without the eminent domain proceedings.

Landfill acquisitions are difficult to value. Despite the leakage problem and the issues of single and double lining, old landfills may have substantial value.

Future Expansion in Jacksonville

Biz Journal

JACKSONVILLE — The Jacksonville Port Authority is looking at alternative ways to acquire waterfront property for future expansion.

The authority is discussing with several property owners the possibility of entering a long-term lease or an owner-financing arrangement. Under the latter, which the authority prefers, the original landowner would hold the mortgage and the authority would own the property and make annual payments, said David Kaufman, the authority’s senior director of planning and properties.

Attempted land acquisitions recently have been marked with legal disputes and a game of musical chairs, as in the case of the authority originally wanting to place the Hanjin Shipping Company Ltd. on the 167 acres owned by Zion Jacksonville Limited Partnership. The authority later balked at using eminent domain and instead opted to have Hanjin’s terminal share Dames Point with the TraPac Terminal.

Kaufman said the authority is discussing alternative deal structures with the property’s owner, Abraham Zion.

 

It is amazing that there was once a 'need' to condemn private property for a user who chose not to buy, but rather acquire through a governmental agencies powers to acquire. Apparently the 'necessity' was not there. 

 

But for the Brigham Moore Firm properly defending the eminent domain action by obtaining just compensation, the owner would have been deprived of basic constitutional rights.   

Property Split in Half

Loudoun Times

Sam and Uta Brown soon may be in a position to answer the question, "Can a working farm survive inside town boundaries, with a major road running through it?"

The Browns insist the answer is "No."

Purcellville Town Manager Rob Lohr said the town has always worked and will continue to work with the Browns to preserve the farm. At the same time, Lohr said, one of this council's top goals is to get the Southern Collector Road finished. It has been on town planning maps for 25 years, and now runs from A Street at Route 690 along the southern edge of the town's boundaries, to the southern edge of the 16 acres in question.

Sam Brown and his brother Timothy, of Middleburg, own the 16 acres just outside town limits. They also own 40 acres within the town limits -- all protected by a conservation easement -- and 45 acres to the south. Sam Brown farms most of it as Crooked Run Orchard, a pick-your-own orchard and farm that attracts up to 20,000 visitors a year.

Purcellville Town Council will decide Dec. 16 whether to proceed with plans to annex 16 acres of the Browns' Crooked Run Orchard into town. If the property is brought into town, the town will be able to use its condemnation power to extend the last unbuilt 1,300-foot section of the Southern Collector Road along the edge of the farm to East Main Street (Route 7) at Route 287.

The Southern Collector Road, if completed, will do little to relieve traffic on Main Street, Sam Brown said, and it will split his farming activities in half. He will be forced to drive farm equipment out onto Main Street and up the Southern Collector Road to get to his land.

"The benefit [to the town] is so small compared to the damage to the farm," Uta Brown said.

-The town has no feel for what happens when a working operation is split in half. Without a doubt the government will claim that this is simply another parcel with little use due to the conservation easement. The reality is that it is being used to the maximum.

Texas Developer Files Lawsuits to Bulldoze Freedom of the Press

www.ij.com

Targets Include Book Author, Publisher, Law Professor Richard Epstein
and Newspapers that Published Book Review

Dallas, Texas-In perhaps the most striking example of a disturbing
national trend, Dallas developer H. Walker Royall has launched a lawsuit
spree to silence any media or public affairs commentator who dares
expose his attempted abuse of eminent domain.  Similar suits have been
filed in Tennessee, Missouri and elsewhere by developers and governments
looking to silence critics of eminent domain for private gain. 

Royall worked with the city of Freeport, Texas, to try to condemn a
generations-old shrimp business owned by the Gore family to make way for
a luxury marina.  The project became the subject of the book, Bulldozed:
"Kelo," Eminent Domain, and the American Lust for Land, authored by
veteran legal journalist Carla Main.  Bulldozed tells the story of
Freeport's plan to take the Gore's waterfront property for Royall's
luxury marina development project.  Only hours after the U.S. Supreme
Court's infamous Kelo v. City of New London eminent domain abuse
decision, the city instructed its attorneys to redouble their efforts to
seize the Gore family business.  Bulldozed unravels why, after years of
litigation, the threat of condemnation continues to hang over the Gores.
The book was reviewed in many newspapers, including The Wall Street
Journal, was nominated for the Texas Historical Commission's annual T.R.
Fehrenbach Book Award and it won a highly competitive independent press
award for political science writing.

After journalist Main wrote her book exposing the Freeport land grab,
Royall sued her as well as her publisher, Encounter Books, for
defamation.  He even sued nationally renowned Law Professor Richard
Epstein who wrote a blurb for the book's dust jacket.  When someone
reviewed the book, he sued him.  When two newspapers published that
review, he sued them.

Today (Wednesday, December 10, 2008), the Institute for Justice Texas
Chapter (IJ-TX) filed a notice of appearance with the Dallas County
District Court in order to vindicate the right of author Main, her
publisher and Professor Epstein to freely debate eminent domain abuse.

"Rather than try to defend his indefensible effort to have the
government take someone's land for his private development project, H.
Walker Royall sues and sues and sues and sues," said Matt Miller,
executive director of the Institute for Justice Texas Chapter, which is
defending the book's author, the publisher and law professor Epstein.

Earlier, when the Gores-the original victims of Royall's eminent domain
abuse effort in Freeport-complained against Royall's actions, he sued
them for defamation.  That lawsuit is ongoing.

Main is a veteran journalist who was an associate editor of The National
Law Journal, where she edited the opinion page and wrote a column on law
and society.  She wrote for The Wall Street Journal, Policy Review,
National Review, The American Lawyer and The New York Sun, among other
publications.
Before becoming a journalist, Main practiced as an attorney in New York
City for ten years.

"The book was a labor of love," said Main.  "I researched it
meticulously and gave Mr. Royall multiple opportunities to be
interviewed.  His primary complaint about the book seems to be that I
described him as participating in an economic development taking, which
he did."

Richard Epstein is the James Parker Hall Distinguished Service Professor
of Law at the University of Chicago Law School, where he has taught
since 1972.
He also teaches at the New York University School of Law.  Epstein has
published 14 books.  His Torts and Cases and Materials on Torts
textbooks are widely used in law schools across the country.  In 1985,
Epstein published Takings: Private Property and Eminent Domain, a book
about the Fifth Amendment and the limits of the government's power to
use eminent domain to take private property.  The book has been cited
four times by the U.S. Supreme Court.  Takings is an essential book in
the debate about eminent domain and property rights in America.

Epstein was sued by Royall over a small blurb on the back cover of
Bulldozed.  Epstein said, "It is a sad day in the life of America when a
powerful individual like H. Walker Royall, who has complete access to
the media, thinks that the appropriate response to criticism is to
remain silent and then to bring a defamation action against those who
comment on his deeds."  Writing an admiring blurb is not something
Epstein ever expected would get him sued.  "There are few times in my
professional career when I've been flabbergasted and this is definitely
one of them," said Epstein, who has been a law professor for more than
40 years.  Epstein's blurb reads, in its entirety:  "Like a Greek
tragedy unfolding, Carla Main's book chronicles the eminent domain
struggles in Freeport, Texas, which pitted the Gore family, with its
longtime shrimp business, against the machinations of an unholy alliance
between city politicians and avaricious developers. If you have ever
shared the Supreme Court's unquestioned deference to the public planning
process that shaped its ill-fated Kelo decision, you'll surely change
your mind as you follow this sordid saga to its bitter end.
You'll never look at eminent domain in the same way again."
   
Encounter Books is a non-profit publisher that promotes democratic
culture with a catalogue of award-winning and important books.
Encounter Books has more than 100 titles on topics including religion,
military affairs, Greek civilization and current events.  Roger Kimball,
president and publisher of Encounter Books, also publishes The New
Criterion magazine.  Kimball said, "There is the First Amendment, which
I think is very much at stake in this case.  There is also the broader
issue of public education."

"Eminent domain for private gain is the subject of nationwide public
debate," said senior attorney Dana Berliner, who was co-counsel in the
Kelo case and who will help direct this litigation.  "If Walker Royall
didn't want anyone to talk about him or his development deals, he
shouldn't have made a deal to develop a private marina using public
money and someone else's land.  The Constitution protects people who
talk about important issues like eminent domain abuse by governments and
private developers.  If developers don't want people writing about them,
then they shouldn't be involved with government's abuse of eminent
domain."

The freedom to learn about eminent domain abuse is also at stake because
Royall is asking the court to stop the presses on Bulldozed, preventing
anyone else from reading the book.  "Mr. Royall should tell the public
why he doesn't like Carla Main's book, rather than try to censor it,"
said Wesley Hottot, an IJ-TX staff attorney.

Founded in 1991, the Virginia-based Institute for Justice fought the
landmark legal battle to protect property rights in the U.S. Supreme
Court, arguing Kelo v. City of New London in 2005.  The Institute has
successfully defended eminent domain abuse activists sued for speaking
out in St. Louis, Mo., Clarksville, Tenn., and Renton, Wash.
# # #
 

Condemnation Driving Urban Renewal

Maryland Daily Record

For many people, the words “condemned building” bring to mind a creaky, dilapidated house with boarded-up windows and caution signs posted: somewhere you don’t dare go without a hard hat.

But in Baltimore, the use of condemnation powers — otherwise known as eminent domain — has become synonymous with urban renewal. The government’s right to condemn and seize private property, sometimes perfectly intact and well-maintained, and convey it to another private owner is the engine driving many of the city’s most important development efforts.

Despite several recent court cases and laws that check the powers of municipalities to take property, condemnations are accelerating in the city: More than $22 million in eminent domain seizures have been authorized this year, up nearly 250 percent from 2007, and nearly 12 times the inflation-adjusted dollar amount of seizures authorized in 2003, The Daily Record has found. These statistics were determined as part of an examination of nearly 1,000 pages of public records covering the last five years.

To put that number in context, $22 million is about seven times what the city expects to spend in fiscal 2009 to fight homelessness, and about 10 percent of what the city will spend on schools...

Here is an article worth reading. There are times the process of taking for transfers might work for the community. However, the risk\reward analysis is a difficult balancing act even in the best of situations.

AEP in Virginia

Forbes

Sandy and Gene Byrd Harman own a 400-acre Black Angus cattle farm in Bland County, Va. that has been in Gene's family for five generations. Its view of rolling pasture backed by the virgin forests of the Blue Ridge Mountains has remained largely undisturbed for 150 years. "Our landscape could be on any postcard in America," Sandy says.

Five years ago the Harmans feared that their pristine vista would be lost. Their farm lay in the path of a high-voltage line that American Electric Power, the second-largest electric utility in the U.S., wanted to lay across the valley. The 765,000-volt (765kV) line would be an electrical superhighway, built on towers 130 feet high. It would carry three gigawatts of power, easing the strain on an antiquated network of smaller wires that carried electricity between the Midwest and AEP's power plants there, and the East Coast.

Ron L. Poff, AEP's project manager for the line, had the job of persuading the Harmans and 163 other landowners to let the $300 million, 90-mile line pass through their properties. Harman spent a year attending town meetings at which residents "blew a lot of steam," she says. Then in 2006 she agreed to sell AEP an easement over a 200-foot-wide swath of her farm. She won't discuss the price, but AEP has had to compensate landowners not only for property but also for visual pollution

-This writer recognizes the importance of electric transmission capacity. However, the need of the profit making AEP for the owners property rights should not be used as an excuse to shortchange the owners.  AEP is relatively inexperienced in the process, but Bulldozed might be the right word for the way AEP is going about it.  At least Joe Waldo is there to represent the owners in Virginia.

Marina Liability

The Facts

Economic Development Corp. board members soon will address the docks and sprinkler system required for the Freeport Marina’s completion, but the president of the board says they could run out of money before both items are completed.

Dan Tarver, the new board president, said after the corporation’s meeting last week that the board and the developer, Briarwood Holdings, have yet to agree on who will foot the bill for all items past the $6.5 million projected cost of the marina. Mayor Larry McDonald said the contract signed between the two entities called for the corporation to pay for all costs up to that number, and the developer to pay for anything more.

“I don’t think he embraces the idea,” Tarver said of the developer, Walker Royall. “I think it’s a situation where the reality of the situation has not set in yet, of what the cost overruns are.”

Messages left at Royall’s offices were not returned.

Officials believe a completed marina will help jump-start a revitalization in the port city. But since the project’s inception in the early 2000s, people in town have debated its need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

In the ensuing turmoil, former City Manager Ron Bottoms left and former Mayor Jim Phillips was defeated by McDonald. During the summer, City Council turned over the former corporation board, whose members then fired Lee Cameron as executive director. Cameron had overseen the project from the start…

Freeport always is a bonus for this blogger.  The continuing foolishness of the community which gave rise to Carla Main's Bulldozed is at it again.  Heck, Freeport makes it easy to write about good old time eminent domain skullduggery.  I sure miss it in Michigan now that Hathcock is in force!

Nevada's Battle against Kelo

Review Journal

In response to the U.S. Supreme Court's 2005 Kelo ruling -- in which the liberal justices formed a 5-4 majority to OK government land seizures on behalf of private parties -- local attorney Kermit Waters put together a ballot initiative designed to limit such outrageous abuses of eminent domain in Nevada.

The proposed constitutional amendment, known as the People's Initiative To Stop The Taking of Our Land (PISTOL), would have to pass twice -- in 2006 and 2008 -- to become law.

Well, you'd have thought that Mr. Waters had attacked baseball, apple pie or even double-digit pay raises for government workers. The howls from the state political establishment were loud and shrill. The measure, they argued, was so Draconian that governments would have a hard time seizing land for even legitimate purposes such as road building.

Opponents of the measure sued to prevent voters from passing judgment. While the Nevada Supreme Court did modify the initiative, the justices then let it go forward and it passed easily in 2006.

Realizing that they would likely lose again in 2008 -- they did, as the amendment was approved with 61 percent support -- opponents arrived in Carson City for the 2007 session with a plan. Craft a compromise with Mr. Waters, get lawmakers to approve the plan twice and put the new proposal in front of voters in 2010 as an effort to override the original amendment.

Mr. Waters eventually embraced a legislative proposal that he says contains 90 percent of his original initiative. It easily passed the Legislature in 2007 and will almost certainly win approval by lawmakers in 2009 before heading to voters the next year.

 Kelo offered the individual State the right to restrict takings within its jurisdiction. One can argue the Fifth Amendment's intendment was a national policy, but there is no support for the premise in the decision of the Kelo majority. However, Nevada is but one more example of an individual jurisdiction's decision to limit the all encompassing powers of the local takings power.

  The attached article notes the outstanding job done by Owners Counsel of America lawyer, Kermitt Waters, in 'tilting against the winds' and winning!

Airport Expansion in Philadelphia

Delco Times

In his comments to the Federal Aviation Administration this week, U.S. Rep. Joseph Sestak, D-7, of Edgmont, called a proposed Capacity Enhancement Plan at Philadelphia International Airport “a poorly planned transportation project and a waste of taxpayer funds.”

There are two alternatives for the CEP, with projected costs of $5.2 billion and $5.4 billion, according to a draft environmental impact statement. One alternative would add a new runway.

The aim is to reduce delays, but the CEP would also displace at least 72 residences and 3,300 jobs from Tinicum, including the relocation of a UPS facility, all of which would decrease the tax base for the township and the Interboro School District.

County Solicitor John McBlain also drafted the county’s comments to the FAA for the record. He said the county criticized the authority’s analysis of things like air quality and noise impacts, though it was most concerned about the loss of homes and businesses...

-We have an inevitable difficulty with the expansion of airports. Quite simply, we all love to have the airport reasonably close to the community.

However, if close to the urban base, any expansion necessarily results in huge losses of jobs and\or residents.

Is it really the highest and best use?

Three Village Times

It looks as though the Courtesy Hotel may finally be coming down. The hotel property will likely be sold to real estate developer Trammell Crow Residential, which will build a 150-unit rental apartment complex on the site.

The Town of Hempstead had been holding up the sale because the town supervisor and town board felt that the project was too dense for the area. However, the density of the project has been offset by the donation of an acre of land by the MTA to the town. That acre of property will remain as open space.

The Courtesy Hotel has long been a sore point for residents of West Hempstead. It has been the location of numerous arrests for violent and sexual-related crimes. Some West Hempstead community members have been lobbying the Town of Hempstead for many years to have the hotel closed.

Town officials tried unsuccessfully to close the hotel through the town's public nuisance law. However, that law didn't stand up in court. The best option, many members of the community felt, was to let the sale of the hotel property go through to Trammell Crow. The real estate developer had an agreement to purchase the hotel property and then build a 176-unit luxury rental apartment complex on the 2.7-acre site. However, Town of Hempstead officials believed the proposed 65 units per acre was too dense for the town. The Town Board eventually adopted an urban renewal plan for the area that allowed for a maximum density of 45 units per acre.

It appeared that the saga of the Courtesy Hotel would continue until the town could secure the property through eminent domain proceedings. However, recent developments that have lowered the density of the Trammell Crow proposal will now allow the sale to go forward.

The keys to the town's decision to let the sale of the hotel property and the construction of the luxury apartment building complex go forward were Trammell Crow decreasing the size of the proposed complex to 150 units and the MTA turning over a .97-acre parcel of property to the town to be used for open space. The 150 units in 3.67 acres of property amounts to 41 units per acre, which is within the density the town is willing to allow.

For Hempstead Town officials who believed the original Trammell Crow proposal was too dense, the addition of the .97-acre MTA property proved to be a necessary element.

For valuation purposes, the highest and best use may be the use the condemnor intends to use the property for after the destruction of the present use.

 

Bulldozed- A must read

The Facts

The ULTIMATE.  Carla Main, an investigative reporter, wrote a riveting book
about the abuse of eminent domain power in Freeport, Texas.  Any reasoanble reader would find nothing defamatory as to any individual. The book, Bulldozed, dealt with the Texas oil baron who came back to 'redevelop' in his hometown (for profit).  The writer (likely correctly) perceived this to misuse of the eminent domain power to be an attempt to ‘make a buck'.  So now, after he uses the condemnation power for his personal public use, the oilman sues the writer, Carla Main, and a brilliant legal scholar, Professor Richard Epstein of the University of Chicago Law School, for besmirching his reputation.


Honestly,  the First Amendment still does allow Freedom of Speech, no?  But
if the Fifth Amendment protection that private property should be taken for
public use no longer has validity in Texas, maybe we should all throw in the
towel and forget about the First Amendment too!  Realistically, we should all hope the courts make short decision dismissing the vexatious lawsuit against the writer of an outstanding book, which allows truth to be more interesting than fiction.
Bulldozed, by Carla Main, is a great Xmas buy.

 

Utility Control

Wayne Independent

The Upper Delaware Council, Inc. (UDC) delivered testimony at a November 5 public hearing convened by the New York State Department of Public Service in Hancock to gather input on the application by New York Regional Interconnect, Inc. (NYRI) to construct a high voltage direct current transmission line on a 190-mile path between Marcy and Rock Tavern, NY.
The New York State Public Service Commission (PSC) will determine by August of 2009 whether to grant NYRI a Certificate of Environmental Compatibility and Public Need for its proposed $2.1 billion power line.
The two Administrative Law Judges assigned to the case, Jeffrey Stockholm and Michelle Phillips, agreed to hold 13 public information forums between October 20 and November 6 in the seven New York State counties affected by the proposed route to personally hear statements and create a record for their review.
The UDC was represented at three of the hearings which took place on Oct. 29 at the Delaware Community Center in Callicoon and Sullivan West Central High School in Lake Huntington, and on Nov. 5 at Hancock Central School in Hancock.

-A valid claim of a power line being the cause of substantial environmental damage may be the only defense to the overwhelming control of utility project routing. The Congressional delegation is clear in the public policy support for utility expansion to improve the power grid. We can only hope that the profit making endeavors of the utilities will recognize the damage they cause to individual owners and the dangers to the environmental well being of the community.

Willets Point Plan

NY1

The City Council voted late this afternoon 42-2 in favor of the controversial plan to redevelop the industrial Queens neighborhood Willets Point, shortly after the Council Land Use Committee's 19-2 approval of the plan.

One council member abstained from voting.

The $3 billion plan will turn the 62-acre area into a hub with housing, shops, a school, and a convention center.

Yesterday, Mayor Michael Bloomberg reached a deal with City Councilman Hiram Monserrate, who has been one of the project's most vocal opponents.

The agreement increases the amount of affordable housing from 20 to 35 percent and also provides $3 million in relocation aid for local businesses.

City officials on the Land Use Committee approved of the mayor's deal, and said the plan will bring jobs and housing and be a boon to the struggling economy.

“In times of economic crisis, it is good for the city to be investing in our future. I believe this is a good investment,” said Queens Councilwoman Melinda Katz, who represents the area that includes Willets Point.

The city has said it might use eminent domain to remove the other small businesses that do not leave voluntarily.

Here is New York City making a redevelopment attempt which comes at great risk during very uncertain times. One recognizes that in New York, just about any take is valid. However, should this fail, do we look to a national bailout? If projects fail, could impoverished communities obtain the same relief?

Clearville Gas Drilling

Altoona Mirror

Ralph Blevins of Claysburg stood at a long table filled with materials on natural gas contracts and projects, picking up stacks of papers, skimming through them and trying to educate himself on what could happen to him in the near future.

Blevins has a gas and oil lease in Kimmel Township, Bedford County, and traveled to the tiny town south of Everett where landowners hosted an informational workshop Sunday to show others the struggles they have faced with a natural gas storage field project in their town.

''The information is overwhelming,'' Blevins said.

He was surrounded by several long tables piled with a chronological overview of the Clearville project, walls with large posters of information on natural gas company Spectra Energy and the Federal Energy Regulatory Commission, which regulates projects such as the one in Bedford County. A couple of videos played in opposite corners of the room at the Monroe Township building.

Dick Eckman, who calls himself the Clearville ''self-appointed watchdog,'' was pleased to see a large turnout at the workshop.

This utility is getting killed by the media here. The reality is that it probably could care less. Apparently Spectra feels the Federal Court system bodes well for condemning authorities. This is not necessarily true, especially when a utility gets a little 'greedy' as is so apparent here.

Oklahoma Energy

Journal Record

When it comes to oil and gas production, the Oklahoma Corporation Commission is the agency in charge of regulation. The Oklahoma Department of Environmental Quality is in charge of regulating emissions and uses of carbon dioxide.

So who is in charge of regulation when energy companies use carbon dioxide to extract more out of oil and natural gas wells? What if an energy company branches into the carbon sequestration business, collecting carbon dioxide in empty wells? Both the state and the federal government are sorting through the issue as new technologies are expanding the number of lucrative uses for carbon dioxide. ...

-Even when a free market process is available, when it comes to gas storage or a new land use, every newspaper article comes to the point of simply using condemnation (eminent domain) as the way to obtain the property right. Why not let market forces apply?

D.C. bill allowing eminent domain

WTOP News

WASHINGTON - The D.C. Council is considering a bill that would allow the city to use eminent domain to seize and redevelop nearly two dozen properties in southeast Washington.

Legislation introduced by D.C. Council Member Marion Barry targets three areas east of the Anacostia River.

Barry says he hopes the owners will cooperate without the city having to use eminent domain.

An official in D.C. Mayor Adrian M. Fenty's office says the administration backs the bill.

-Gentleman, it is hard to believe the offers are going to be just perfect. The owners will maybe donate the property to the City so that a few developers (somebody's friend or relative) can profitably put the private property to better use.

This is a long, long ways from the need for the taking in Berman v. Parker!

Placement of Transmission Lines

Salt Lake Tribune

Bear River Valley landowners, angry over Rocky Mountain Power's route for a major northern Utah transmission line, have arrived at a sobering conclusion.


   “The power in Rocky Mountain Power means something other than electricity,” says Richard Nicholas, whose land here will be traversed by the 345-kilovolt line scheduled to begin construction soon.


    “People have no rights, and that's wrong. We have been bullied around . . . Power companies have more power than government!”


   Nicholas' sentiment - if not his blunt appraisal - is echoed by Box Elder County mayors and commissioners. They believe they had no real say in where the 150-foot-wide power corridor goes through their communities and countryside.

-Local communities are regularly exasperated at the conduct of the power companies' routing of lines through the most pristine or populated areas.

The problem is not simply one of location, but rather one of whether the permitting authority, be it the FERC or the state Public Service Commission has broad discretion in limiting the lines in accord with the public desires. 

As set forth in the attached article there may be an additional cost in the establishment of a line in accord with the community request for routing. However, the locals have a right to be heard. The issue is whether the licensing (permitting) authority has the empowerment to review, and the discretion to modify the route. 

If the discretion is available under the Congressional or state grant of authority to the licensing authority the question is becomes, what is the appropriate standard to change the route to satisfy the local community's requests?

An example of the Kelo aftermath

thefacts.com

Over the course of the project since its inception in the early 2000s, officials have debated the project’s need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

McDonald reiterated the marina project will go through because that was one of his campaign promises. But the new findings will push the marina further behind schedule. Tarver predicted a summer 2009 opening but said it needs to be completed in a timely manner so the city could start getting money back on the lease.

-The Freeport,Texas overbearing and inane destruction of private property for a private use is an example of what makes owners shudder about the Kelo decision. The private use taking involved here will affect the whole community.

St. Paul Port Authority Taking

Twin Cities

The St. Paul Port Authority, tasked with bringing business into St. Paul, is kicking out a profitable, tax-paying, unsubsidized, woman-owned, 48-year-old family business. It is a company that pays its 43 employees — nearly half of whom are union members — an average wage of $24 per hour with full medical benefits. And it leases out the construction equipment that has helped build the Xcel Energy Center, restored the Cathedral of St. Paul, and is adding to Regions Hospital.

 

While showing this successful company the way out of town, the Port Authority has not found a replacement. What the St. Paul Port Authority is engaged in is little more than real estate speculation with $10 million of taxpayers' money…

 

The next generation of post Kelo cases will deal with governments that claim property is in some fashion contaminated and therefore requiring acquisition for 'redevelopment'. The real question is whether there is such an immediate danger to the community in the use of the property that a government can enforce a 'reuse'.

Alternative Energy Exploration

Heartland Institute

 

-This is an intriguing article. It questions the propriety of government tax benefits to the energy 'developer'. The problem is one of wobbly matched pairs. We have subsidized oil and gas exploration for over sixty years.

 

What is the big surprise here? Maybe, just maybe, because we feel the system allows the 'big guys' to get away with a lot more, putting us in an inferior position. No, I am not turning left or right, it is just this writer looked at where home town favorites are moving in a downward spiral, all the while not receiving the same help as Boone.   

Billionaire financier T. Boone Pickens’ campaign for government subsidies to wind power, advertised in a full-page ad in The Wall Street Journal and subsequently in an op-ed piece in the same, seems erroneous in several respects.

Kentucky American Pipeline

State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

 

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.


Kentucky American has said it has the right to condemn property but seldom uses it.

Company spokesman Brian Wright said in more than 2,000 cases over the last 19 years, KAW has had to ask a court to condemn property only five times.

 

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allow the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

Airport pays for delay

The Morning Call

The authority that runs Lehigh Valley International Airport now owes more than $24 million for 632 acres it took more than a decade ago from a developer that planned to build homes and a golf course, a Lehigh County judge has ruled.

A jury in March decided that the Lehigh-Northampton Airport Authority owed WBF Associates $10.4 million for gobbling up the land in 1996. The airport has made only one payment to the company -- $3.15 million on Nov. 2, 2000, according to court records.

So, Judge Carol K. McGinley this month ordered the authority to pay additional delay damages and mortgage interest totaling $16.3 million.

It doesn't stop there. Interest continues to accrue on the award each day until it's paid off. According to McGinley's order, the interest on the money owed for the mortgage is $1,463 per day...

 

It is amazing that the owner has the fortitude to wait over a decade to get paid. The process of delay can be utilized by a governmental agency to 'wear the owner down', a process completely compromising the constitutional requirement that Just Compensation is to be paid upon the taking of property.

Kentucky American Pipeline

State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.
Kentucky American has said it has the right to condemn property but seldom uses it.

… The pipeline will run one-tenth of a mile in Owen County, 15.3 miles in Franklin County, 10.7 miles in Scott County and 3.8 miles in Fayette County.
The entire project is scheduled for completion in early summer of 2010.

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allows the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

Rails Condemnation

KCAU-TV

Former South Dakota Supreme Court Chief Justice Robert Miller is questioning the legality of a 2008 state law aimed at speeding up the eminent domain process.

At a hearing this week, Miller agreed with landowners who want more time to prepare for a hearing on the Dakota, Minnesota and Eastern Railroad's application to condemn land for its proposed $6 billion coal train and rail renovation project...

Since the initiation of the process, the statute granting DM&E the authority to condemn has been attacked and challenged.  The taking is for a corporation ostensibly regulated, allowing for the activity even under Michigan’s Hathcock case.  However, the limitation on the court to a ninety day resolution raises issues of Due Process not only for the owners, but also the condemnor.

 

Michigan allows the court only thirty days to come to a finding.  Many courts therefore start the process and extend the hearings out until all parties are fairly heard.

Tenants' Rights

South Town Star

With negotiations over the Orland Plaza at an apparent standstill, Orland Park has begun condemnation proceedings against the owners of the village's oldest shopping center.

Orland Plaza owners and the mall's tenants were notified Tuesday after the village board approved an ordinance Monday and filed court paperwork to begin eminent domain proceedings Tuesday.

But both village officials and the property owner say they're happy to return to the bargaining table to negotiate a deal for the land the village wants near 143rd and LaGrange Road. Orland Park wants to extend Jefferson Avenue, Ravinia Avenue and a third street into the new Metra parking lot and development as part of its $100 million Main Street Triangle project.

"It's definitely our intention to keep talking to the property owners," Orland Park's assistant manager Ellen Baer said. "That's our intention to keep moving with the property owner. At some point we have to get the (legal) process going. We would certainly prefer to come to an agreed-upon price with the property owner. They have not countered our offer. They rejected our offer. I couldn't even tell you how far apart we are."

Eminent domain is a government power to seize private property for the public good, with the government having to fairly compensate the property owner. To begin the process both the village and the property owner were to get appraisals of the property to begin negotiating a fair price. George Gee, one of the property owners, said his attorney asked the village for a copy of its appraisal, but didn't receive one. As a result the negotiations stalled.

…While the village is offering relocation packages for the businesses it is leaving negotiations over the leases up to the property owners. Some of the leases including options for renewal extend to 2020. She said each tenant's relocation package would be different. The tenants would receive 90 days notice before they had to move.

All too often, tenants are left with little relief when they and their landlords are condemned.  However, many states do have statutes, which at least partially protect tenants.  The Uniform Relocation Act is losing its potency, minor as it was, in many states because a project not utilizing Federal funds does not have to follow the Federal act.

Casino Taking

The News Dispatch

"I believe the end is near," Mike Bergerson, attorney for the Michigan City Redevelopment Commission, told commissioners Monday.

He was talking about an end to legal wrangling between the city and the owners of Trail Creek property at the corner of Michigan Boulevard and Eighth Street. The city wants to obtain the property through eminent domain while the owners have said the city should purchase the property at current market values.

Bergerson said both sides will meet with a mediator on Sept. 22 to resolve differences. If an agreement isn't reached, an Oct. 9 hearing date has been set, at which time an appraiser would be appointed, Bergerson said.

"Ultimately, if the parties can't come to a resolution through mediation or other discussion, the court has set a trial on Jan. 8," he said.

Bergerson told commissioners that negotiations are proceeding for the property purchase and relocation of Blocksom, now located on Trail Creek property targeted for redevelopment. He said an Oct. 6 negotiation session could be the last one.

In other business, John Pugh, director of city planning, said results of a market analysis of the Lohan Anderson plan for the city's North End and Trail Creek corridor will be presented at the Oct. 6 Redevelopment Commission meeting. Tracy Cross, a national residential market analysis firm in Schaumburg, Ill., was selected to conduct the analysis.

 

Eminent domain use to expand casinos seems to be the mode of expansion on the cheap in more than just New Jersey.  The Blocksom take is for a casino expansion, be it for a parking building or just accessory amenities to the casino.

Waterfront Taking

WAVY TV 10

On Thursday, there was a rally pitting homeowners against government.

The Johnson's Crab House is in the cross-hairs of Portsmouth City Council, which has voted twice to condemn the property in order to turn it into a public park.

Three generations of Johnsons own and operate the Johnson's Crab House - a place where you pick up live or steamed crabs and go.

For 14 years, the Johnsons have owned this business on Scotts Creek - one that's been on the property through other owners since 1913.

Their Attorney, Joe Waldo, is an eminent domain expert, "It's the old adage. The new guy comes in, and the old guy has to go. That's not right in America."

Eminent domain laws empower the state to take private property for public use.

…The problem now, there's so much bad blood between the two sides, a middle ground may not be reachable.

Again, we have the individual suffering at the unfettered power of eminent domain retained by the local government.  The worst thing about owning waterfront property which is allegedly "underutilized" is that the government will show up at the door to place the property to another use via the eminent domain process.

Acquiring Property to Stop Development

Sherwood Voice

 Task force member Mary Peyton was interrupted several times by members asking whether she didn’t have a vested interest in the project because she was doing real estate work for another of developer Charles Hinson’s subdivisions.


The civil attitude Maumelle has promoted over the years seemed to go by the wayside for the sharply divided panel. At most city functions, speakers have been discouraged from speaking directly to individual members or audience members, bantering with them and especially from interrupting them.

Apparently opponents to the peninsula development have created a new plan for thwarting its development — condemning the property under eminent domain.

Jeff Van Patten, a Maumelle resident and task force member who led his Manitou Drive neighbors in opposing the plan earlier this year, first proposed the purchase of the peninsula by the city.

With a flip chart to explain his proposal, the North Little Rock developer said he was still opposed to the watered down plan and told task force members he believed that if his neighbors went on record that they won’t give up, the city should condemn the land and buy it…

…Davis said the law allows a city the option to obtain property for a public function and ensures that the owner is paid the fair market value. She said the City Council would have to vote for condemnation of the property and the city would have to file condemnation proceedings in court…

…Van Patten said his idea was to pay the developer a fair market value for the land. Audience members suggested it could be turned into a park, one of the original uses for part of the land. Van Patten’s group opposed this, suggesting it would bring too much traffic through their neighborhood and bring in the wrong kind of people at all hours of the night…

…Peyton said the issue about building in a flood plain would be up to the federal government to determine whether the buildings could withstand a flood. She said she and Maumelle engineer Bob Holloway had seen a lot of developments opposed by residents citing traffic, such as the Osage development. She said Osage opponents suggested the new residents would kidnap babies, sell drugs and do things behind trees…

Nothing is more dangerous than attempting to acquire property on the cusp of development in order to stop the development.  The profit is effectively built in by the time the developer has the project plans, much less the approval.  Jumping into take the development away, especially to benefit other developers, is not Public Use as generally contemplated by the Constitution. 

Pennichuck

Nashua Telegraph

Pennichuck Corp. has named Roland E. Olivier, a longtime corporate attorney, to a new position of general counsel to guide the company in its eminent domain fight with the city of Nashua.

The company said Monday that Olivier also will direct Southwood Corp., a land holding company.

Olivier also said that he looked forward to working again with Pennichuck chief executive Duane Montopoli, who also once worked at Hitchiner.

At the end of July, the state Public Utilities Commission ruled that Nashua could acquire Pennichuck's waterworks for $203 million plus a $40 million mitigation reserve. While the city considers whether it wants the utility at that price, Pennichuck plans to appeal the ruling.

Thus far, Pennichuck has relied on outside counsel. That would still continue, but Olivier said he would provide some in-house guidance as the company makes decisions on the matter down the road.

Olivier said that most activity at Southwood has been put on hold while legal battle with Pennichuck continues but that the subsidiary "would continue to act as an excellent steward for the watershed for the towns that we serve."

Condemnations of utilities need a full time participant outside of the normal corporate governance structure in order to properly defend the business from an aggressive eminent domain action.  Forced acquisitions require a full time special assistant to guide and protect the corporation.  The guidance of the defense takes a full time employee to guide the work with outside counsel.  The issues run the gamut of trial preparation, leadership and protection of the institution.  Pennichuck is following the required route in defense of the its perpetuation.One has to wonder why this case was not removed to the federal court.  

Clear Fork Valley Storage Field

WMFD TV- Click to see video

 

A citizens' group formed in the Clear Fork Valley is ready to do battle with a corporate giant.

Representatives of Ohioans Protecting Our Resources and Rights, called on the Richland County Commissioners to outline their disagreement with the Columbia Gas Transmission Corporation.

Butler resident Van Ross Wade says the company has notified residents it wants to enlarge its wheeler gas storage field from the eastern edge of Butler and Millersburg.

No compensation has been offered, citing eminent domain. The grassroots group meets from 7 to 9 p.m. each Thursday at the Clear Fork Adult Center in Butler. The public is welcome to become involved.

-The individuals involved in this newscast apparently are not being fully informed by Columbia Gas as to their rights. Has the utility authority approved this project?  Did the owners give up their storage rights?  Is a fair attempt to resolve premised upon the principals of just compensation being made?  Valuable interests are being taken.  The owners should be fairly compensated as part of the process

Roundabouts

Hutchinson News

By passage of a resolution, the Reno County Commission took the first step this week toward acquiring land by eminent domain for the future roundabout at 56th Avenue and Plum Street.

Three parcels - on the northwest corner, southwest corner and east of the intersection - are involved. The owners are Reno Western Corporation, Andrew and Elizabeth Klamm, and Robert and LeslyeDill.

Concern about the amount of money offered for the land and the loss of the land figured into owners' reluctance to sell, according to county officials.

The roundabout will be built next year. The heart of the intersection will be shifted west of the current intersection. Without that realignment, a residence on the northeast corner would have been directly affected by the enlarged intersection.

District Court would appoint appraisers to evaluate property values. Either the county or the property owners can appeal the value that emerges.

 

-Road commissions think taking land for a roundabout is a simple deal.  The roundabouts can seriously diminish the remaining value after the partial taking in States, which maintain a section line (mile road) road system, because the four ninety degree corners are already built.

 

Pinion Canyon

The Pueblo Chieftain

Rep. Mark Udall, D-Colo., is asking Defense Secretary Robert Gates for official assurances that the Army will not use condemnation in trying to acquire another 100,000 acres for the Pinon Canyon Maneuver Site northeast of Trinidad.

Udall sent the letter Friday, just two days after an emotional confrontation between ranchers opposed to the expansion and Army Assistant Secretary Keith Eastin in Trinidad. Eastin hosted the meeting to tell ranchers the Army wanted to deal with "willing sellers only" and would not condemn land in trying to add another 100,000 acres directly south of the current training area.

The ranchers, who have fought the Army's expansion plan for more than two years, walked out of the meeting. They told Eastin that Congress had specifically approved a ban prohibiting the Army from any work on the Pinon Canyon expansion in 2008. A week ago, the House approved legislation that would extend the ban through 2009 as well.

Udall had taken part in an earlier meeting between Eastin and the Las Animas County commissioners and afterward said it was encouraging that the Army was promising to abandon the expansion if they could not find a willing seller to provide another 100,000 acres.

Ranchers fighting the expansion are concerned that if the Army can find a willing seller for some acreage, it could isolate other private land - giving the Army even more reason to use eminent domain to consolidate its holdings. While Eastin repeatedly told the ranchers the Army is not interested in condemning any property, those assurances were met with deep skepticism. One of the long-festering issues in the bitter dispute is the Army's past assurances that it would not seek additional land around Pinon Canyon, some of which was acquired by condemnation in the 1980s.

-The “willing buyer\willing seller” purchase, as the only way the government will purchase property, is a system that assures the inevitable; i.e., the military will be the only purchase in the area. This will be because everyone assumes that the moment there is an emergency, the government will simply acquire the property interests that remain in the area after all the 'voluntary' purchases are made.

Pipeline In Pennsylvania

Altoona Mirror

Spectra has begun work on a proposed natural gas storage field and pipeline system after being approved by the FERC last month.

Shortly thereafter, however, residents who will be affected by the project contacted FERC with concerns, forcing the commission to order a rehearing and consider the issues they brought up.

In the letter, the landowners, who fear a premature use of eminent domain by Spectra, asked for the FERC to use its power to give them information that could be helpful in negotiations with the Texas-based company.

…The landowner letter asked for a response from the FERC before today.

…One of the landowners' largest concerns is that of possible natural gas and oil reserves in a formation known as the Marcellus Shale, which runs through most of the area in question.

If a storage field to hold products from across the nation or other countries is put into place, drilling for reserves that already may be there can not be done because of a possibility of explosion or other dangers to the properties.

Spectra, however, insists that no test wells have been drilled to prove that the Marcellus Shale holds reserves.

-The situation in this article is very similar to the Washington Ten and South Romeo gas storage condemnations in Michigan.  The owners are probably too late in the process to stop the taking.  Further, FERC is less than totally responsive to objections by individual owners being taken by eminent domain, seeing their decision as a Federal policy rather than local action.  However, FERC is not seeking to limit the owners' rights to just compensation.  The storage rights do have substantial value, which clearly is not being paid in this particular Pennsylvania case.

Clearville Storage Rights

We Are Central PA

A Texas-based company wants to put natural gas wells in Clearville, Bedford County, and they're trying to use eminent domain to do it. Some property owners there say they're being treated unfairly.

Paul Stup and other several landowners had a lease agreement with a company PG&E. That company drilled on their property and the people got royalty checks from the natural gas produced. In their contract, they had a clause that it would be just drilling and removing not storage.

In storage a company brings in natural gas from outside the area and puts it into the ground like a storage tank.

A couple years ago the PG&E sold the lease agreements to Spectra, a Texas-based natural gas company, and Spectra wants to store natural gas in Bedford County…

Most states will utilize their gas fields for storage and resale.  This is extremely profitable for the utility company 'subsidiaries'; which receive hefty stipends for storage and resale during high need months.  The owners can be paid fairly when eminent domain dispossess their ownership rights, but only when if the just compensation process is fairly utilized.

Owner's Gas Storage Rights

Mirror Takes

A Texas-based private natural gas company says it is filing for control of several Clearville properties after more than a year of unsuccessful communication and outreach with landowners who do not support its proposed project.

Meanwhile, a major federal regulatory agency is concerned about the landowners' complaints and has filed for additional time and a rehearing addressing the potential project.

Spectra Energy's Steckman Ridge natural gas storage facility was approved by the Federal Energy Regulatory Commission in early June.

…One of the major concerns of local residents is the possibility of losing out on royalties from the Marcellus Shale, a long section of sedimentary rock along the East Coast believed to harbor large amounts of untapped natural gas reserves.

If the storage facility is in place, designed to hold imported reserves from across the country or other nations, drilling for local reserves would be impossible.

…Spectra expects the 12-billion cubic foot facility to be completed and in service in April.

The Texas firm attempting to privatize the owner's gas and gas storage rights should carefully assess the economic (acquisition) costs of the project.  The owners have clear and succinct rights to compensation.  A close reading of the article verifies that such did not apply in this situation.

Fairness in the Judicial Process

STL Today

A St. Louis jury awarded $2.8 million on Friday to the former owner of two acres just north of the Edwards Jones Dome downtown in a fight over eminent domain.

The city's Land Clearance for Redevelopment Agency condemned the two-acre tract after the owner refused sell it in 2005 for $523,000.

The property, a city block bordered by Sixth, Seventh, Carr and Biddle Streets, was included in the "Bottle District" redevelopment plan for a $226 million entertainment destination including a restaurant, concert venue and bowling alley. It has not yet come through.

A commission of three attorneys set the value of the property at $1.2 million. The city's agency paid that price and took control of the land. But the owner, McTayd L.C.C., appealed to a St. Louis jury, which heard evidence last week and reached a unanimous verdict for more than twice as much.

-The decision of  the jury on this parcel, bordering on the downtown development is a great example that there can be fairness in the judicial process.  This action was tried brilliantly by land owner attorney Robert Denlow of Clayton, Mo.

Pipeline Takings

Star Telegram

When a gas drilling company wants a piece of land for a pipeline, its representative usually shows up at the owner’s door with a letter from the Texas Railroad Commission, stating that the company has a right to take the land.

Pipeline companies can condemn land because they’re considered either utility companies, which serve the public the same as Atmos or TXU, or "common carriers," a legal term that means they carry oil or gas for anyone.

Major gas companies have formed their own pipeline divisions as they seek routes for gathering pipelines to serve the Barnett Shale. These divisions have the power to condemn land. ...

This is an article worth reading.  Consider the following questions when reading this article. When is a take effectively a private take?  Is there statutory relief needed?  What is the constitutional and statutory authority designed to limit “public use” \ pipeline takings?

School Taking

Fosters Daily Democrat

Until September 2006, the option of expanding the middle school onto Alumni Field was believed to be off the table.

A deed restriction on the property — which was donated to the city by the Peirce family in 1913 with the stipulation that it remain a park — requires the city to go through eminent domain proceedings to use the property for anything else.

In the past, Peirce family heirs have fiercely objected to building on one of the last green spaces left in downtown Portsmouth and the city has largely left it alone.

In 2006, the School Board learned from the city attorney that lifting the deed restriction was a possibility. Discussions over the past two years have focused on keeping the school on Parrot Avenue, but until Tuesday, the School Board had not made a recommendation.

Tuesday, School Board members voted 8-1 to send a "preferred option" of building on the property, to the left of the current middle school on Parrott Avenue, onto the City Council. This decision will have to meet with the approval of the City Council before any eminent domain proceedings begin.


School board members will address the size, programming and other issues at a future workshop.

The taking of reversionary interests is like any other taking of a private interest.  Donors of property to the public frequently seek the return of the property if placed in a different use.  A tougher issue may be finding all the heirs almost one hundred years later in order to obtain the releases.

Challenges to Legislative Change

Delaware Online

Members of the House and Senate have said a new eminent domain law is a priority. Last week, in an attempt to get the nod from Minner, both removed the state Department of Transportation, which condemns land for road construction, from the legislation.

Although the bill came partly as a response to the riverfront squabble, it also was a reaction to the 2005 U.S. Supreme Court decision in the Connecticut case of Kelo v. City of New London. In that case, the nation's highest court ruled that the taking of private property as part of a comprehensive redevelopment plan was a permissible use of eminent domain because the public at large benefits from the redevelopment.

Kelo caused a backlash, and more than 40 states subsequently passed laws to rein in the use of condemnation powers for redevelopment efforts.

-This is another example of how difficult it is to legislate change in the condemnation power.  In all likelihood, the legislature in most jurisdictions can override a gubernatorial veto. But it takes a whole lot of stomach and a supermajority in most states to override.

This is but an example of why so many seeking to limit the overwhelming power of eminent domain go to the referenda process for relief

Failure to Refer Vote

Sioux City Journal

An eminent domain law passed by the South Dakota Legislature this year will take effect Tuesday as scheduled.

Secretary of State Chris Nelson says a group that wanted to refer it to a public vote was about 1,600 signatures short of the number needed to put it on the November ballot. Referral to the ballot would have kept the law from taking effect July 1.

The law will help the Dakota, Minnesota and Eastern Railroad and its proposal to expand to Wyoming's coal fields. It speeds up the process when a railroad asks to use eminent domain to cross private property.

-Referenda is available in most states. However, the availability is not enough.  If citizens desire to challenge the legislative action, there must be basic support throughout the jurisdiction.  South Dakota citizens maintained a vocal opposition to the DM&E project.  Apparently, the group was either not strong enough to obtain the needed signatures to be on the ballot, or not organized enough, or maybe the public did not maintain the same opposition. 

Residents Leaving Baltimore

WJZ.com

Baltimore's use of eminent domain and high property taxes have caused residents and businesses to leave the city, according to a report by a Loyola College economist.

The city's policies especially in the developing Charles Center neighborhood and the Inner Harbor have resulted in Baltimore's high crime rate, poverty and declining neighborhoods, Stephen J.K. Walters wrote in the report, entitled ''Baltimore's Flawed Renaissance.''

Baltimore residents fear the use of eminent domain, and because of that are less likely to improve properties and many ultimately leave the city, the report said.

The report also cited the city's highest-in-the-state property tax rate. High taxes caused the city to give major companies tax breaks and subsidies, money the city could have better spent in ways that helped all Baltimore residents, Walters wrote in the report published by the Institute for Justice, a libertarian law firm in Arlington, Va.

Such policies ''doomed the majority of the city's neighborhoods to continued decay,'' the report said. ''Baltimore is today two cities, separate and unequal, not in spite of its extravagant and interventionist redevelopment program, but because of it.''

Matthew Crenson, an emeritus professor of political science at the Johns Hopkins University, said the report did not address the effects of deindustrialization, school desegregation or the 1968 riots. The report also does not indicate whether Baltimore uses eminent domain more than other American cities, Crenson said.

-It certainly puts a crimp on trying to place improvements on the parcel, when individuals know the government will acquire their property in order to transfer it to a developer, .

When developers know that if they want to develop, and the community will acquire the property for them through the eminent domain process; developers will never provide an offer to purchase at fair market value, thereby lowering demand in the market.

Uphill Battle in Rail Condemnation

Grand Forks Herald

The signatures still need to be verified, but a group trying to keep a South Dakota law on land condemnation from going into effect has turned in petitions to put the issue on the November ballot.

The group Protect Private Property wants to kill the law passed this year that would speed the hearing process for a railroad to take property under eminent domain.

It's scheduled to take effect July 1 and was prompted by the Dakota, Minnesota and Eastern Railroad's plan to expand and improve its line to haul coal from Wyoming to Minnesota.

More than 19,500 signatures were turned in Monday. If nearly 17,000 of them are valid, the law would be suspended until November.

The railroad says it has been working with landowners to acquire rights of way but might need to use eminent domain in some areas. 

-The group fighting the condemnation has a true 'uphill' battle.  First, the voters will look at the referendum issue closely.  Second, if a vested right is now taken from the railroad, the citizens may have to pay Just Compensation to the RR system for its lost vested right!

Local Government Attacks Private Use

DelMarvaNow

Representative of local governments across the state are criticizing a bill that limits the use of eminent domain in Delaware to public purposes.


The bill, sponsored by Laurel Democrat Robert Venables, was scheduled for a Senate vote later today. It would limit the power of governments to seize property through eminent domain to instances where the land would be taken for public use.


The bill specifically states that public use does not include increasing tax revenues, the local tax base, or jobs through private land owners or economic development.

Representatives of the Delaware League of Local Governments gathered at Legislative Hall today to voice their opposition to the bill, as well as others that they believe infringe on local authority.

George Wright, executive director the league, said the eminent domain bill is an attempt to take home rule away from local governments.



This article is an example of one of the few times a local government has been at the forefront of attacking private use takings. Generally, the local agencies look for some specific non-governmental agency to "carry the water".

Reaching too far

News Busters

It has been nearly three years since the Kelo v. New London ruling by the US Supreme Court, and just short of two years since the city of New London, CT settled with the final two Fort Trumbull holdouts, Susette Kelo and the Cristofaro family.


The Supreme Court's majority, in their June 2005 Kelo ruling, declared that "public use" as stated in the Fifth Amendment to the Constitution really means "public purpose" -- that is, instead of the government being able to take land through eminent domain only for the purpose of building a public structure or creating a public service (road, bridge, school, park, etc.), the government can take land for any reason it believes a worthy one. In the case of New London, the city believed that demolishing occupied, functioning houses that had stood for over 100 years and developing "something else" that would garner the city more tax revenues was a worthy public purpose.


What has been done with the property since then?


-What an ignominious unwinding of the much maligned Kelo decision. New London may have simply tried to reach for the unreachable.

Potential dangers in drilling for gas

The Times Tribune


Ms. Howe Henneberg called eminent domain “evil words,” and she fears a pipeline running through her backyard if her neighbors sign natural gas drilling leases.

“It would be horrifying to me,” she said, adding she wants to buy the 13 acres adjacent to her 6-acre property.

Ms. Howe Henneberg was one of more than 300 residents from Pennsylvania, New York and New Jersey who attended the Damascus Citizens for Sustainability event Saturday night that featured a narrated slide show by Theo Colburn, Ph.D., the co-author of “Our Stolen Future.”

Though Dr. Colburn spoke to the crowd via phone from Colorado, her presence filled the Delaware Youth Center, her comments at times eliciting gasps from the attendees. She spoke about natural gas drilling in her state and stressed the need for full disclosure from drilling companies.

During the fracturing process, when natural gas is forced from the ground, “they’re using a number of chemicals with long names that many of you wouldn’t recognize,” she said.

A recent study of natural gas production on the western slope of Colorado, Dr. Colburn said, found 215 products with 278 chemicals were used.

Of those chemicals, 93 percent produced adverse health effects, while information on the remaining 7 percent was “proprietary” and therefore not available, she said.

Some of the chemicals used can cause irreversible “endocrine disruptions” before a child is born, Dr. Colburn said.

She can also foresee similarities between drilling in her area and the Northeast.

Anticipating the effects of natural gas drilling and spreading awareness are goals of the Damascus Citizens, a grass-roots group that formed in February.


-This article notes the potential dangers in drilling for gas. Safety is not an option it is required. Yet, drilling gas is something that is a nationally propounded policy, as illustrated by our tax regulations.

Land Too Expensive

Journal Gazette

Sometimes land can be too expensive and time-consuming, forcing a road project around it.
Q. Why didn't the city/county buy or take by eminent domain the BP gas station that sits within the triangle of Getz Road, Covington Road and Jefferson Boulevard? - E-mail from Gerry, Fort Wayne.
A. Good question, Gerry, and one I assume several others have asked as they drive past this congested intersection, which has only become worse during the construction.
But the reason for not buying the gas station is a good one as well. According to Shan Gunawardena, the city's traffic engineer, at the time the plans for the project were being developed the owners of the BP station were not interested in selling.
Gunawardena said using eminent domain would have been costly and would have required environmental permits and mitigation work to remove the underground gasoline tanks and subsequent cleaning of the area. The project was designed to minimize the effect on this commercial area of the city, and so the city did not pursue buying the property. The work is set to be completed in November.


-Hail, Hail! We finally have a governmental agency that recognizes it should not buy what it cannot afford!


Prop 4- Revisited

Michigan Radio

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ANN ARBOR (2006-11-02) One of the questions voters will be asked to decide on November 7th is a property rights measure called Proposal 4.

The constitutional amendment would put restrictions on governments' ability to condemn private property for redevelopment through the police power known as eminent domain.

The question stems, in large part, from a landmark Michigan case that allowed a neighborhood to be razed to make way for a General Motors plant.

In 1981, GM struck a deal with the mayors of Detroit and Hamtramck to build a brand-new assembly plant on the border between the two cities.

For Hamtramck, the idea of a new plant was a godsend. The city had lost a quarter of its tax revenues when the old Dodge Main plant closed two years earlier.

And Detroit stood to benefit from new, high-paying factory jobs at a time when few companies were investing in the city.

But first, Detroit would have to seize and demolish homes and businesses in an area that became known as Poletown.

Attorney Alan Ackerman represented some of Poletown's property owners. He says some people were happy to go. But he says other people felt that the government had no right to seize and demolish their property to make way for a private corporation.

"What it did," Ackerman says, "is it made sure people felt that they had no real right to their homeownership."

The Poletown case went to the state Supreme Court. In a landmark decision, the court ruled that governments could take land for economic development.

But two decades later, the court overturned that ruling. And now Proposal Four's aim is to enshrine that decision in the state Constitution.

Backers of the measure say the need for the amendment comes from yet another court decision: Last year, the U-S Supreme Court said governments can seize property for private development.

But the court also said it's up to each state to set its own rules.

Alan Ackerman says Proposal Four guarantees that the Michigan decision barring such property seizures stays in place.

"What we have is a situation in which people are worried there's going to be a reversal of that decision by some means," Ackerman says. "And they have such a fear that they want it in the constitution. And that protects them permanently."

But critics of the measure say in the zeal to protect property rights, Proposal Four would make it nearly impossible for communities to clean up blight through eminent domain.

Jerald Rosenfeld is with the JR Group - a firm that helps governments acquire property for redevelopment.

He says a provision of Proposal Four that would require property owners be paid 125 percent of the fair market value of their home or business would make even legitimate uses of eminent domain unreasonably expensive

"We're talking about the highway department," says Rosenfeld. "We're talking about an airport. We're talking about our road systems. They're gone. Those new developments, those new projects - they won't happen anymore, because the cost will be so great."

Backers of the measure dismiss that argument. They say it's important to remember that a home or neighborhood is worth more than what the market reflects.

And they say Poletown is a good example of that.

Marian Krzyzowski grew up near where GM's Poletown plant now sits.

He says the destruction of the Poletown neighborhood didn't just wipe out homes, schools, and churches. He says it also accelerated the decline of the area around it.

"Driving down the street, you can see there are mostly empty lots, boarded up storefronts, and mostly empty buildings," says Krzyzowski as he drives through the neighborhood south of the plant. It looks like it went through a war.

But the story north of the plant is a much different one.

Greg Kowalski was editor of the Hamtramck Citizen newspaper at the time the Poletown plant was built. He says the tax revenues from the plant rescued the city from financial ruin.

"And today Hamtramck is actually growing quite rapidly," says Kowalski. "Population is increasing. Housing values have gone up substantially, there's a lot of development going on in the city, and we are much better, sounder shape than we were back then."

Twenty-five years after Poletown was razed, voters will decide whether Proposal Four is the best way to make sure a similar situation doesn't happen again in Michigan - or whether it goes too far in preventing the redevelopment that some cities desperately need.

Border Takings

The Brownsville Herald

Before construction can begin on the border fence, the federal government must purchase a large stretch of South Texas land from private landowners.

But in Cameron County, the government's offers have been met with resistance from residents unwilling to sell their land.

For some, it's the principle. For others, it's the price.

This week, 16 permanent condemnation lawsuits were filed against Cameron County landowners. After more than 50 lawsuits were filed over temporary access to land in early 2008, these are the first cases that deal with permanent land seizures.

In almost all cases, the government is seeking to purchase land on which the fence will be erected. The lawsuits also request a permanent easement - usually a small fraction of an acre - which will serve as a byway for the U.S. Border Patrol.

"What they offered me is not even one tenth of what my land is worth," said Abraham Galonsky, who is being sued over his commercial property in Southmost. "The number is completely out of line."

Galonsky hopes that the U.S. District Judge Andrew S. Hanen will determine a more reasonable price for his 6.17 acres. No court date has been set for any of the 16 lawsuits.

Although the tracts in question range from .02 acres to more than six acres, the language of each lawsuit is nearly identical.

"You may present evidence as to the amount of compensation to be paid for the property acquired herein," each document reads.

In Galonsky's case, the government seeks a two-year lease, which would enable the construction of an office and a temporary storage area on his property.

"When they take away access and limit the land, they're doing damage to the land's value - that's what they're not considering in their offer."

Officials from the Department of Homeland Security have made it clear that once they've finished purchasing land along the border, the fence's construction could begin immediately thereafter.


-“Temporary takings” offer a number of diverse economic calculations in order determine Fair Market Value under the Federal standards. A two-year temporary taking may not simply be “rental value.”

Agency's Authority to Take Property

The Earth Times

California's 3rd District Court of Appeal issued two unanimous decisions supporting Pacific Gas and Electric Company regarding attempts by the South San Joaquin Irrigation District (SSJID) to enter the retail electric business by seizing the utility's assets.

The first decision rejects SSJID's plans to condemn PG&E's assets through eminent domain in order to provide retail electric service without authorization from the San Joaquin County Local Area Formation Commission (SJ LAFCo). The second rejects attempts by SSJID to depose two former SJ LAFCo commissioners and the commission's former executive director. The Court also ruled that the District is responsible for all court costs associated with the appeals for both PG&E and SJ LAFCo.

"This decision confirms that SSJID must abide by state law, and obtain LAFCo approval in order to enter into the retail electric business," said Nancy McFadden, PG&E senior vice president of public affairs. "This law exists for good reason: Before any special district can take over a service as important as a community's electric power, it ought to be able to make a good case, and prove the public benefit to the region, by winning approval at LAFCo. This decision preserves the checks and balances contained in state law."
PG&E has consistently maintained that SSJID needs approval by SJ LAFCo to enter into the retail electric business. The irrigation district effectively acknowledged the commission's authority by applying to SJ LAFCo in 2006 and actively participating in the commission's proceedings on its application. Only after the SJ LAFCo rejected the application did SSJID claim the commission's approval was merely permissive, not mandatory.

"The denial was on the merits," wrote Justice Fred K. Morrison. "If the District had a stronger case to make, reasonable diligence required the District to make that case at the (SJ LAFCo) hearing."

It is unfortunate for the residents of South San Joaquin County that its governmental water agency has frivolously squandered more than $8 million since 2006 and is committing more than $11.5 million more of public dollars to pursue an unsound business plan that has been denied by multiple regulatory and judicial bodies in which it has applied.
Should SSJID choose to reopen its application with SJ LAFCo, PG&E's position remains firm that the company's facilities are not for sale and that we will vigorously contest a hostile eminent domain takeover.

PG&E has served northern and central California for more than 100 years and is committed to providing clean, safe and reliable energy to our customers in South San Joaquin County. PG&E has provided millions of dollars in energy efficiency savings and innovative services such as ClimateSmart(TM), energy partnerships and solar generation incentives and rebates for local residents and businesses, including SSJID's water and irrigation facilities, to help reduce their energy bills and carbon footprint.


-It is amazing that governmental agencies do not understand their authority to take property comes from the legislature through a statutory delegation, rather than the local body.

Landfill Site

OnlineAthens, May 13, 2008

Oglethorpe County has given the owners of 79 acres on Dawson Road until June 9 to accept its offer to buy the land before it starts condemnation proceedings for the property needed to expand the Athens-Clarke Landfill.


Oglethorpe County officials agreed in March to pay landowner Anne Steiner $682,000 for the property, but the two parties have not signed an agreement.


The family has until June 9 to accept the offer or the government, which shares the landfill with Clarke County, will use eminent domain to seize the property, said Robert Johnson, chairman of the Oglethorpe County Commission.


"Hopefully, the land (deal) can be negotiated before then," Johnson said.


Kim Steiner, the daughter-in-law of land owner Anne Steiner, said in March that the family wasn't willing to sell the land but would have an independent appraiser determine its value. That appraisal was supposed to be completed by May 5, according to Johnson, but commissioners have not seen the report.


The landfill, which straddles the Clarke-Oglethorpe county line, has three to five years of space left, and the expansion would add about 25 to 30 years to its life, Johnson said.


Athens-Clarke County owns the landfill, but Oglethorpe County receives 10 percent of the tipping fees that haulers pay when they bring trash to the dump.


The state Environmental Protection Division still must approve a permit before the expansion.
In the meantime, local environmental activists have submitted petitions to Athens-Clarke and Oglethorpe county officials, asking them to reconsider their January votes to expand the site.
The decisions violate the 1992 agreement made between the two counties to close the site, rather than expand it, once it reached capacity.


"Such blatant disregard to uphold government integrity is an affront to the democratic process and constitutional protection of human rights," said Jill McElheney, an environmental activist.
State law says the agreement is not enforceable since commissions are prohibited from binding another, future commission made up of different members.


The agreement was based on the assumption that a regional landfill would be built, but that effort failed in 1998 after an outcry from residents living near 25 proposed sites. Athens-Clarke commissioners can't vote to reconsider the earlier decision since those votes only can be made in meetings that immediately follow the initial vote and before the adoption of the minutes, said Athens-Clarke County Commissioner Andy Herod.


People near landfills often have a difficult challenge when the governmental agency decides to expand the facility by involuntary (condemnation) purchase. What is seen is often much less than what is there!

Jury Stops Port Authority

Jacksonville Business Journal

The Jacksonville Port Authority probably will pass on acquiring 70 acres at the north end of Talleyrand Avenue by eminent domain, deterred by the $67.4 million price.


Having won a court ruling in December 2006 that the authority could take the property, it had not committed to doing so until the price was settled. Now it knows that price is more than four times what the authority offered before filing for condemnation.


A jury decided May 2 the authority would have to pay $67.4 million to fully compensate Keystone Coal Co. for its industrial riverfront property. The verdict followed a two-week valuation trial that was the culmination of a two-and-a-half-year process the authority had followed to acquire the land for expansion.


"It would be hard to justify purchasing the property for that amount," Authority Executive Director Rick Ferrin said. "I don't know of any maritime use that would generate a return on investment that would justify such a price."

This is eminent domain at its worst. The government attempts to take from one owner simply to transfer to a preferred developer from China! Only in America could a state rule allow dismissal of the taking because it was more than the buyer wanted to pay!

Monroe County Taking

Register Herald

The Monroe County Commission is attempting to obtain ownership of a cemetery, using its powers of eminent domain, because the private owner allegedly has “desecrated the burial ground” by removing tombstones and allowing “raw sewage” to run over graves.

Commissioners Oliver Porterfield, Joyce Pritt and Shane Ashley named Irvin Lee Mann Jr. as the defendant in a lawsuit filed last week that seeks the more than 30,000-square-foot property in Lindside.

The suit states the plot of land is an old cemetery where human remains were last interred in 1914. The commission is seeking to take the property from Mann, pay him for fair market value for it and then restore the cemetery “for the solemn and respectful final resting place for the citizens therein buried.”

“Upon information and belief all grave markers were removed from existing graves in violation of law, and discarded or destroyed, it is believed that some markers may exist over a steep wooded embankment adjoining the cemetery,” the suit states.

“The property has been illegally utilized for residential purposes for some time, and has been recently used by (Mann) as a resident with residential rental structure also on the property.

“... (Mann) has unlawfully allowed raw untreated sewage to run unattended over and across the cemetery property, further desecrating the burial ground.”

A telephone listing for Mann could not be found Thursday.

Ashley said some of the problems with the cemetery began with previous owners of the land, and believes the matter needs to be resolved out of respect for those who are buried there.

“What the commission wants to do is to come in and clean it up and restore it back to the original cemetery and make it presentable and a good resting place for the people that are buried there,” he said Thursday. “I am for protecting the cemetery where somebody’s mother or father may be buried.”

Ashley said he was unsure how many grave sites there are or their exact names, but said, “I’m pretty sure we can work this out.”

The lawsuit also stated the commission does not intend to “create new sites for burials, but only to prevent the further violations of existing graves.”

This is a taking for all the good reasons. There is no difference between an eminent domain proceeding for a disgustingly maintained cemetery and a blighted building. Hopefully, there is a statutory delegation allowing taking of the property.

Let the market determine the value

Nashville Business Journal

The lighting rod issue of eminent domain appears to be escalating around a Music Row property owned by Joy Ford, owner of Country International Records.


Scott Bullock, the attorney who argued the landmark eminent domain case, Kelo v. New London, at the U.S. Supreme Court, will be in Nashville tomorrow to meet with Ford and the media.


At issue is the construction of a $100 million mixed-used office and hotel project by The Lionstone Group, a Houston-based developer. Recently the developers indicated they are ready to move forward with construction, even though Ford's property is located inside the footprint for the project.
In recent weeks, the city has signaled a willingness to get involved because the property is located in one of the city's urban redevelopment districts.



Realistically, this is a prime example of a public agency taking for essentially a private use. Let the market determine the value of the property!

Whether the Kentucky State Constitution empowers Universities with the authority to take land?

The Time Tibune, April 30, 2008

Surely, Northern Kentucky University land-grabbers don’t think they can use eminent domain to seize private property for a new athletic complex. Or do they?

You never know what people in power, who seem to disdain the sacredness of private-property rights, are capable of doing.

N.K.U. officials left the door open for eminent domain when announcing plans for the new complex planned for nearby private property — even before regents approved the plan or owners were satisfied. And the property, essentially placed in limbo, makes it tough for owners to sell now that potential buyers know the university’s plans.

Who wants to buy property with an “up for grabs” sign stuck in the front yard?

The university doesn’t have the cash right now to buy the coveted properties. Playing the eminent-domain card forces other potential buyers to fold.

The Cincinnati Enquirer reported that N.K.U. President James Votruba said the university “will try to avoid using eminent domain.”

Votruba might as well have said: “We’ll try to avoid condemning property. But we will — one way or another — get this property to build our new baseball diamonds, track field, tennis courts and parking lots. If owners don’t accept our (a.k.a. fair-market value) price, we’ll condemn their land.”

The university president didn’t say that, but a local real estate agent did, and he knows eminent domain when he sees it.

…. The founding fathers created a Constitution that allowed eminent domain tactics, but sparingly and only as a means to attain land for the public good — to create utilities, highways and railroads.

…If these property owners in Northern Kentucky are smart, they’ll hire a sharp lawyer. If their elected officials are smart, they’ll send President V. this message: Let property owners determine “just compensation.” Then let N.K.U. pay up — or shut up -— about eminent domain.


The real issue here is whether the Kentucky State Constitution empowers Universities with the authority to take land. If so, uses not purely educational are indeed part of the parameters of the U activities.

Nationalization of the Oil Companies

The Peoples Voice, April 25, 2008

We know what happens to people who stay in the middle of the road. They get run over.” - Ambrose Bierce


Are you sick and tired of being at the mercy of the grasping plutocrats who run Big Oil? Gasoline is now selling at $3.50 a gallon, as the price of a barrel of oil nears $120, with no end in sight to further increases. Meanwhile, the American economy is sinking faster than the Titanic. The dollar, too, is in sharp decline. Mortgage foreclosures are at depression era highs. Over three million middle class jobs have been exported in recent years. The Wall Street wise guys are in near-panic mode. The Fed, after 19 years of Alan Greenspan’s gross ineptness, is held in deep contempt. Yet, Big Oil keeps sucking off the American consumer, with a devil-be-damned attitude, while acting like a law unto itself… read more

Now if we can only nationalize everything, avoid all competition, then have nothing left for us to work for. Nationalization of the oil companies (a slight expense) would assure us of no development or improvements in the oil distribution system, and likely delay our attempts to look to alternative fuel.

Scottsdale Deal Gone Bad

East Valley Tribune, April 15, 2008


Up to $55 million into the pockets of developers, due to McDowell Sonoran Preserve eminent domain actions gone wrong.   


Another possible $8 million to an investment group, related to a disputed lease involving a water treatment plant expansion.


Nearly $5 million spent on a downtown arts district development that fell through last week.
Scottsdale is finding that buying, leasing and selling land does not always go smoothly.


On Tuesday, the City Council is to consider having the City Auditor's Office initiate a fact-finding review into one of one those eminent domain actions, the $82 million Toll Bros. condemnation, in hope of avoiding future real estate pitfalls.



-Scottsdale has actively sought eminent domain as a tool of “development” and to aesthetically improve the community. The article places governments on notice that they should be acquiring by condemnation only where there is no other choice and the need is truly mandatory.

Salute to Bill Moore

Herald Tribune, March 10, 2008

Hanging in the Sarasota conference room of law firm Brigham Moore is an earth-tone print of six Plains Indians seated and standing around a table with a parchment copy of the U.S. Bill of Rights in the background.

For Bill Moore, one of the law firm's named partners, the print is a reminder of one of the greatest land crimes ever perpetrated by the U.S. government.

In the 1820s, federal officials tried to oust Cherokee Indians from their lands in North Carolina, Tennessee and Georgia, and the Cherokee responded by hiring a lawyer.

"They had been promised that land under a treaty dating back to Washington's time," Moore said. "They pled their case all the way to the Supreme Court, and they won."

But President Andrew Jackson refused to enforce the rights of Cherokees, Moore said. Instead, he ordered troops to drive them on a thousand-mile march to Oklahoma, which became known as the "Trail of Tears."

Moore, part Cherokee himself, has dedicated his life to helping protect Florida residents against similar takings. Along the way, he has helped to build his firm into the largest eminent domain practice in the state, with 19 attorneys in five offices…

-Bill Moore has been among the outstanding advocates in protecting owners in eminent domain. His passionate and rational demeanour along with a sense of fairness has offered protection to thousands of Florida owners seeking redress in their constitutional right to be treated fairly.

Plans to transform Anacostia

Washington Business Journal, March 3,2008

Anacostia is getting a long-desired makeover, courtesy of a familiar name.
George Curtis III, whose family's furniture company built the 19-foot high chair at V Street and Martin Luther King Jr. Avenue SE, is teaming with D.C.'s Four Points LLC on a planned 1.5 million square feet of new development in the heart of Anacostia's blighted business district.

The plans include 855,000 square feet of offices, 500 residential units, 165,000 square feet of retail, an eight- to 10-screen movie theater and a grocery store.

Developers and community leaders say the project, with construction possibly beginning in early 2009, could transform Anacostia's main corridor into a vibrant retail and business center.
D.C. estimates the property's value at its best use to be about $33.8 million. Four Points plans to seek greater zoning flexibility.

Curtis will sell the land to Four Points but retain a stake in the project, capping his family's 80 years of involvement in the neighborhood.

-One has to hope the area is truly blighted, and can only be rehabilitated through governmental involvement. If so, the project intended to clean the area makes sense. However, one wonders if there is a private profit motive leading the way. I hope that the individual owners will be protected.

New Jersey Due Process

-New Jersey has a much-maligned rule that it can designate an area as blighted and ready for development. Under the rule, those individuals in the area must challenge within forty-five days or they forever waive their rights to challenge the condemnation. In Harrison, the City waited six years to designate specific properties. This raises substantial due process issues. To date, owners have been unsuccessful in their challenges to the New Jersey procedure, at least in State court.

DM&E Railroad

Rapid City Journal, February 13, 2008

The South Dakota Senate has approved a measure intended to speed up state hearings on the Dakota, Minnesota & Eastern Railroad's application to acquire land by condemnation for its $6 billion expansion project.

An opponent said the bill could hurt landowners who believe DM&E is not treating them fairly, but the Senate sent the measure to the House on a 20-13 vote.

The bill's main sponsor, Sen. Tom Hansen, R-Huron, said DM&E applied more than a year ago for state approval to use eminent domain to acquire land for a right of way from people who are unwilling to sell. Opponents have used delaying tactics to prevent a state hearing, he said.

"The time has come to let the process move forward," Hansen said.

"Their concern was not to stop the railroad. Their concern was to get a decent price for what the railroad was taking," Lintz said.

DM&E wants to rebuild 600 miles of existing track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The Powder river Basin project would haul low-sulfur coal eastward to power plants.

The state Transportation Commission has sought to hold a hearing on DM&E's application for authority to use eminent domain, but that hearing has been delayed after some hearing examiners were removed by both sides. Another delay was caused by a court order that required the commission to pass new rules for handling such cases.



-This article describes the issues in the DM&E Railroad acquisition process.

Here, we have not only a national railway but also a railway owned by a foreign railroad company.

The issues of equal protection, state's rights, interstate commerce and the state's interest in protecting individual rights of its owners all provide a conflict, which has created torturous litigation and a hostile community in a question over what controls the state has on a transportation process within a state.

Atlantic Yards

The City of NY runs to its own clock. The use of mass transit creates an economy is which a central part of the transportation scheme is to have the most dense uses near the subway stops, with the heaviest uses, such as arenas and high rises near stations where possible. This is a basic part of the planning process in NY, DC, Boston and other communities with viable mass transit. Sorry Detroit, not quite a reason for condemnation.

YSU Condemnation

WYTV, January 29, 2008


Neither side has been willing to budge when it comes to the area around Hazel Street and YSU, and that's why the courts are now getting involved.
Last Friday, the city filed a petition against Joseph Grenga, the owner of Grenga Machine and Welding Company on Rayen Avenue. The city wants to demolish that property to extend Hazel Street from downtown to the YSU campus. They've offered to buy the property from Mr. Grenga before, but his response is still clearly plastered on the walls of his business.
So, city leaders say they're following the path laid out by the law to try and force Grenga's hand. "Anytime you have development, not everyone is going to be in agreement with that development. But at the end of the day, I think this project is going to be a significant boost to many many people and many, many businesses in cleaning up that corridor", explains Mayor Jay Williams.
Along with the petition, the City put two hundred and five thousand dollars it offered to Grenga into an escrow account, and attached a city council resolution and ordinance in support of the acquisition.


-It is always hard to stop a road take, bordering on the impossible, because roads are public uses. Only in the very rarest of factual situations can one stop the taking of their property for a road.

Hollywood and Eminent Domain Abuse

Reason Online, December 18, 2007


Drew Carey, Hollywood comedian, recently revisited eminent domain abuse in Hollywood. This film is an excellent demonstration of how eminent domain affects businesses and landowners.


The city of Anaheim demonstrates that eminent domain is not the exclusive option for economic redevelopment.


This great documentary breaks down eminent domain in an entertaining yet informative way.

http://www.reason.com/blog/show/123989.html

Willets Point

Times Ledger, November 23, 2007

Former Borough President Claire Shulman continued her cross-borough tour in support of Mayor Michael Bloomberg's Willets Point redevelopment plan Monday night, telling the Queens Civic Congress she expects a legal battle to take place, but does not believe eminent domain will be used by the city.

The city's plan is expected to start the six-month-long public approval process as soon as February, and Shulman said a developer could be selected as early as next fall. The project remains fraught with obstacles, however, including the need for an extensive environmental cleanup, millions in infrastructure costs and, most pressingly, the 1,300 workers and 250 businesses which will need to be moved.

Shulman said the legitimate businesses at Willets Point deserve fair negotiations with the city, but stopped short of saying they deserve to stay on the 60-acre site.

She said she believes the city has firm legal standing and should not take eminent domain off the table, but does not think the controversial practice will be used when all is said and done.

"Eminent domain is a bottom line and I don't believe it will ever be used" she said. "But it's not in [the business owners'] best interest to wait for eminent domain."

-All too frequently, retired elected officials jump at the opportunity to promote eminent domain actions. Somehow, officials feel that their name becomes good when attached to a successful private taking project such as Willets Point. It is hard to imagine that the former president would know whether owners are better or worse off to await the condemnation.

Costs may outweigh the benefits

Tri Cities, November 27, 2007

BRISTOL, Va. – Despite a recent favorable court ruling, city leaders may opt to abandon the controversial Mendota Trail project.

The proposed hiking and biking trail from the city limits to the Scott County, Va., line has already cost the city more than $600,000, City Manager Bill Dennison said. The council is expected discuss the stalled project at its next meeting.

"An item is on the agenda for Tuesday’s meeting," Dennison said. "It’s a terribly convoluted, complicated, very expensive proposition. Continuing a project, with no end to the expenses in sight, doesn’t seem very prudent to me."

In the nearly seven years since, the city has invested about $635,000 to acquire the land and in legal and engineering fees, amid a six-year legal battle with property owners along the proposed route.

After a number of landowners tried to claim ownership in 2001, the city sued all 180 people with potential claims. Less than 20 are still engaged in the lawsuit, which has not yet gone to trial.

One solution could involve asking the Washington County Board of Supervisors to condemn the property, Mayor Jim Rector said, adding he didn’t know if county leaders would cooperate.

Any decision also needs to include an estimate of the cost of completing the trail, Rector said.

"A half-million dollars will not touch what needs to be done to that trail and that doesn’t include annual maintenance," Dennison said.

The city previously estimated trail construction could cost up to $1 million.

Establishing a trail would involve clearing the land, removing buildings, fences and other obstructions, building bridges, replacing at least one trestle damaged by fire and pouring the base material, Dennison said.

-Sometimes, communities realize in time that they should withdraw from projects rather than obstinately pressing forward without a full analysis of the costs and benefits. Substantial title problems on ownership of property and uncertain expenses can lead to unanticipated obstacles.

Land Taken for Road

Washington Post, November 23, 2007

Maryland highway officials and the philanthropic Eugene B. Casey Foundation are battling in court over the state's decision to seize 405 acres of the foundation's land for the intercounty connector, even though the land is seven miles from the highway's planned route.

The state has taken the wooded, rolling hills in Boyds, and has offered to pay the foundation $3.44 million, to replace some of the parkland and mature forests that will be bulldozed to build the six-lane toll highway between Gaithersburg and Laurel. The Montgomery County parcel is part of the Maryland State Highway Administration's "environmental mitigation" plan, which received federal approval.

Environmentalists say the Casey land is too far away to help the wildlife in the more than 900 acres of forests, wetlands and parkland that the 18.8-mile highway will destroy. The bigger issue: The foundation, its attorney said, doesn't want to sell and thinks the state has no right to the property.

The Casey Foundation is one of the Washington area's largest philanthropic organizations, with a net worth of $166 million, according to its 2005 federal tax filing. Eugene B. Casey, who died in 1986, was a developer and one of upper Montgomery's largest land owners. Betty B. Casey, 80, his widow, lives in Potomac, according to voter records.

The state took ownership of the foundation's property in May, after the trustees declined to negotiate a fair market price, said Melinda Peters, the intercounty connector's project director. Upon seizing the land, the state deposited its purchase offer of $3.44 million with the Montgomery Circuit Court and filed a condemnation case against Betty Casey and other trustees. A judge is expected to rule in spring on whether the state has the right to seize the land.

If the state wins the court case, the land would be turned over to the county's park system. But, Park said, the foundation might then appeal because Maryland has no case law on the state's rights to seize land far outside a project's right of way.

Full construction on the highway began last week, after a federal judge in Greenbelt rejected two lawsuits that alleged that the project violates federal environmental laws. The intercounty connector, estimated to cost $2.4 billion, is scheduled to fully open by 2012.

A ruling on the extent of the state's eminent domain powers could have far-reaching ramifications. Such "environmental mitigation" packages to replace wetlands, forests and other habitat have become commonplace, particularly on large, controversial projects.

However, as development grows denser near projects, highway officials said, they have had to find replacement land farther away. As part of rebuilding the Woodrow Wilson Bridge, for example, regional highway officials created or preserved 100 acres of wetlands in Stafford County and planted river grasses at the mouth of the Chesapeake Bay to replace those lost to the larger bridge.

-This article deals with the issue of true intent in a taking by an acquiring agency.  Is the intent of the acquiring agency to find the easiest way out of a required mitigation project?  The acquiring agency may totally fail to repair the harm of a project or simply mitigate this situation by replacing the acquisition with something available elsewhere.  It is possible the statute, requiring mitigation for forestland taken for a roadway project, has no relationship to the project area affected. 

 

Be Cautious Before Signing Leases

Weekly Almanac, Editorial

Some Wayne County landowners, particularly in the northern part of the county, have the opportunity to make royalties off their land by singing leases with natural gas companies that have been looking to acquire drilling rights here. Residents have been advised to find out as much as possible about the process before signing anything.

The companies’ interests will take precedence over the interests of the landowners.

Landowners were advised to join together, pool their acreage and hire a lawyer or agent to negotiate for them as a group.

-This editorial is one of the brightest and well written editorials that could be provided to the owners. The editorial realistically advises owners that they should look to what rights they have and pool their acreage. In most States, there is a State statute which allows pooling, thereby allowing the individual owners to maximize their values.  This will likely result in the highest possible royalty percentage.

EnCap Investigation

North Jersey, October 23, 2007

North Arlington officials on Monday called for a federal investigation into the "entire sorry episode" of the controversial EnCap proposal to build a massive golf course-residential-retail complex in three Bergen County communities.


The report, based on a review of 10,000 pages of state documents, showed that the project has added to the pollution in the Meadowlands -- revealing, for example, that 2.5 million cubic yards of contaminated materials have been brought to the site in Rutherford and Lyndhurst.


The project plans for Lyndhurst and Rutherford call for two golf courses, a hotel and 2,500 residences, all built atop the four old landfills there.


After The Record reported details about the $300 million in publicly funded financing for the project, Governor Corzine directed the state inspector general to investigate the deal. That review is still under way.

-No State is feeling the punishment of the private/public relationship more than New Jersey. Here EnCap is apparently accused of buying its way into deals with local government. Due to this, nothing is being developed, trust in the government is being destroyed, and one wonders whether government can ever treat private owners fairly.

Algonquin Gas Transmission, Intent to Prepare an EIS

Trading Markets, October 24, 2007

The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will identify and address the environmental impacts that could result from the construction and operation of the East to West HubLine Expansion Project (E2W Project or Project). The E2W Project is proposed by Algonquin Gas Transmission, LLC (Algonquin), which is an indirect wholly owned subsidiary of Spectra Energy Corp. The Commission will use the EIS in its decision-making process to determine whether or not to authorize the Project. This notice describes the proposed Project facilities and explains the scoping process that will be used to gather input from the public and interested agencies on the Project. Your input will help determine the issues that need to be evaluated in the EIS.


Summary of the Proposed Project
Algonquin proposes to modify portions of its existing pipeline system in Massachusetts, Rhode Island, Connecticut, New York, and New Jersey. The E2W Project consists of the construction and operation of 46.1 miles of various diameter pipeline and associated ancillary pipeline facilities. Of this total, 13.0 miles consist of new pipeline in Massachusetts and 33.1 miles consist of the replacement of existing pipeline in Massachusetts and Connecticut. A significant portion of the 46.1 miles of the proposed pipeline facilities would be either within the existing Algonquin right-of-way or adjacent to an existing powerline right-of-way. No new right-of-way corridors would be created based on the alignment as currently proposed with the exception of several minor alignment deviations to facilitate construction.


In addition, Algonquin proposes to construct 2 new compressor stations in Massachusetts, install over-pressure protection regulation at 4 sites in Massachusetts, and install minor modifications at 5 existing compressor stations and 29 existing meter stations along Algonquin's system in the 5 Project states as described below. A general overview of the major Project facilities is shown in Appendix 1. /2/

-A major gas pipeline will be installed in new areas, as well as along old pipelines, in New York, New Jersey, Connecticut, Rhode Island and Massachusetts. The project is a major facility expansion traversing hundreds of miles. This will be a closely followed and much debated project affecting numerous landowners.

Farmers Not Looking to Sell

YouNewsTV, October 17, 2007

A local landfill has agreed to pay for a much needed sewer treatment plant near Wyatt. In exchange, the landfill could purchase land from farmers without rezoning.

Waste Management has offered to pay for the $1.5 million plant, but in return, it wants an overlay district created around the Prairie View Landfill.

After criticism, St. Joseph County proposed smaller district.

The plan has undergone a few changes. But the biggest change is a contract is a contract that will require Waste Management to pay property owners for fair market value if an

Waste Management anticipates the landfill will need to expand in another 25 years. Some farmers who live next door to the landfill do not want to sell.


-Forcing farmers to lose the right and benefit of owning a farm with potential for other development in the future because of proximity to the waste site does not fulfill the basic requirement of full compensation clauses of either the Indiana or Michigan Constitutions.

County Purchases Another Utility

Shorelines, October 11, 2007

St. Johns County Utility is ready to finalize a deal to buy intercoastal Utilities. Some people still think the price is too high.

Appraised at $24.5 million, the aging water and sewer system serves about 4,500 residents in Ponte Vedra Beach and Palm Valley.

At a Palm Valley Community Association, meeting residents complained the appraised value is too high.

Whether or not no the county acquires the utility, it will have to pay the company’s legal fees for the past year.

-Many governmental agencies are attempting to take water and other utilities when they fear there is an environmental issue, a safety constraint, or inability to develop in an appropriate fashion in the future. However, this community should not think that their rates will go down simply because the utility is being purchased by the County.

Crude-Oil Pipeline: Pontiac to Patoka

Pantagraph, October 1, 2007

LeRoy attorney and political activist is recruiting clients to fight an eminent-domain request to build a crude-oil pipeline from Pontiac to Patoka in Southern Illinois.

Millions of dollars in payments to landowners hang in the outcome of Enbridge Inc’s request from eminent domain.

Enbridge spokesperson has repeatedly said eminent domain is a last resort.

 

-It is good to see an activist fight the condemnation process. However, each landowner should protect their individual interest on the damage claims. The same attorney can do this, but each owner should look to the individual claim that they may present. Otherwise, they may find themselves in front of a group of special masters who have no understanding of the issues at hand and face the possibility of no just compensation.

 

$17 Million to Relocate and Vacate

Long Beach Press Telegram, August 17, 2007

Then city of San Pedro will pay a petroleum storage company $17 million to vacate 12 acres of waterfront property in the Port of Los Angeles.

The settlement comes after five years of negotiations in which the port threatened to condemn the property over various environmental and safety issues.
Clean up, which may take several years, is organized by the city and the port.

-As in so many other communities, San Pedro has determined that the burden of cleanup costs and just compensation far outweigh the value to the community of an industrial use in an area attempting to de-industrialize. This is of major public policy import because there will soon be a day which there simply is not enough land to maintain industrial uses. Further, the environmentally sensitive uses being placed by gasoline type companies will inevitably change to higher and better uses such as high-rise residential, commercial development and intensively used port facilities.

 

Ridge Water District Looking to Acquire Neighbors

Chico Enterprise, August 18, 2007

Paradise Irrigation District has been in talks about collaborating with its neighbor, Del Oro Water Co., to chare water from a proposed pipeline.

PID officials announced they are looking at an alternative. They would like to acquire Del Oro’s two districts covering Lime Saddle and Old Magalia.

Del Oro maintains its districts are not for sale.

If PID presses ahead with the acquisition process, it will have to seek approval from the Butte County Local Agency.

-The article is a classic example of the desire to obtain a new “economy of scale” in purchasing franchises, thereby expanding the business viability and opportunity. As part of this taking, the proposed acquirer would best review its statutory authority. See Grosse Ile Township v. Grosse Ile Bridge Company, 727 Mich. 593 (2007).

Wilmington Riverfront Fight

Delaware Online, August 23, 2007

Business owners in Wilmington are fighting the city’s plan to take their property using eminent domain.

Wilmington officials want to redevelop the riverfront, a plan 35 years in the making.

The city promised local business owner Ed Osborne and others fair market value and to relocate them to a business park near Garasches Lane.

-Clearly, communities need to redevelop blighted areas. The problem in Wilmington is that its citizens who are reasonable and responsible businessmen owning property in an area which is at least partially blighted. Then, the owners face the massive majority, such as that expressed in the Delaware Online article of the News Journal, in which it seems that the whole notion that there is nothing unfair in the process runs contrary to reality.

In the article, one of the questions raised was whether the owners were protected from abuse of authority.  The only answer is "no," they are not fully protected. The courts will hold that the government has the right to take the property unless there is a clear abuse of discretion in the governmental activity. This action is unlikely to be found in a situation where a major portion of the area is blighted. At the same time, the notion that owners will be protected just does not meet with the reality in which owners do not get paid for business interruption and other damages. Lost profits will be difficult to obtain, and the value of the businesses may not necessarily be paid.



Atlanic Yards

Brooklyn Daily Eagle, August 3,2007

Plaintiffs are challenging the use of eminent domain to build the planned Atlantic Yards Project.

Plaintiffs are property owners and rent subsidized tenants located in the footprint of the planned 22-acre development project.

Under the Fifth Amendment to the US Constitution, "private property shall not be taken for public use, with just compensation."

-The Atlantic Yards case is a difficult case and will have little opportunity for success given the presence of Kelo precedent.  However, it may be in the United States Supreme Court where we visit the issue.  If the Supreme Court does reverse the Kelo decision, it will only be due to misuse and abuse of the power by local communities that put us all in this horrible position.

Airport Taking- What is highest and best use?

Frederick News Post, August 2, 2007

The city of Frederick is pursuing the use of condemnation of a local farm so it can expand the airport.  

The city council voted unanimously to take the farm property.

According to city documents the farm has been appraised for $2.8 million.

The city council believes firmly that it is the right step to take the property.

-This article presents an underlying theme in condemning authorities that simply if you assess, especially a low assessment, that is the fair market value for the property.

Airport takings frequently offer issues of what is the correct highest and best use for the property.

School Condemnation

Leesburg Today, July 16, 2007

Loudon County Public Schools staff and representatives of two adjoining Dulles area properties continue to butt heads over how to proceed with land acquisition.  

The landowners contend no negotiations had taken place and the school system was rushing to begin a condemnation process. 

-School Board takings seem like simple public acquisitions.

However, properties taken for schools are variably in areas of growth, where a noteworthy demand in a community is simply missed by appraisers. In many communities, School Boards will not acquire by the eminent domain process, but rather simply buy what is available in the marketplace, thereby avoiding the hostilities and uncertainties of eminent domain proceedings.

Future of Florida Avenue Market

Washington Business JournalJune 29, 2007

If the proposal proceeds as is and half the landowners agree to sell, dozens of retailers and wholesalers who have operated businesses in the market for decades may have the option to move into the warehouse by buying retail condominiums. However the real estate will most likely be much costlier than they pay now, and some fear there will not be enough space for many retailers to operate, including areas to load an unload trucks.  

Business Landowners have formed the Florida Avenue Property Owners and Merchants Association to fight the evolving development.   

“Our goal is to see that the market is preserved. There is no other land in the region that can build a market like that.”

-All too often, an individual, full contemplating the ‘general benefit’ to the property and its tenants, want redevelopment without appropriately safeguarding individual rights. The fact of a redevelopment will differ with each ownership interest to simply redevelop for the purpose of redevelopment alone simply does not fulfill the constitutional requirement.

Gas/ Petroleum Pipeline: Monroe, Buckeye and CMS

Monroe Evening News, January 18, 2007

When property owners in Monroe Michigan found out about a proposed Marathon Petroleum pipeline they understood that pipelines are a fact of life, but that doesn't mean they have to like it.

Marathon has been laying the groundwork for installing a new pipeline through Monroe County.   The pipeline would bring crude oil from Canada to the transfer station in Detroit.

The new line would be wider by 24 inches.

-Pipelines often have different attributes. Some are gas, while others are oil or gasoline.
Each pipeline has a different effect on the property. The environmental considerations are of paramount import. Affects on the property may occur in any of a number of ways.

The pipeline companies can be challenged. Despite a pipeline agent telling people that it will be very expensive for them, in many jurisdictions, the agency is required to pay the expert fees of the owners even as part of a settlement or litigation. The Marathon pipeline discussed in the Monroe Evening News will be particularly challenging for owners.

Airport Condemnation

NWA Online, June 21, 2007

Airport commissioners recommended Tuesday the City Council begin condemnation proceedings against a property owner near the Springdale Municipal Airport. 

Buying the land will allow the airport to clear trees on the property that are both an obstruction to aircraft and a hazard because of the birds they gather.

-There is a great advantage to property ownership near an airport. The proximity to air traffic and a decent road system may dramatically increase the value of the property. However, when one is near an airport, one suffers the grave risk of being taken by the next airport expansion.

West Virginia and Pennsylvania Energy Corridor Draws Opposition

The Herald Standard,  June, 14 2007

The U.S. Department of Energy heard Wednesday that Pennsylvania and West Virginia residents and public officials do not want most of the counties in both states to be declared a National Interest Electric Transmission Corridor (NIETC).

...Meyer said that designation of a corridor would signify that the federal government has concluded that a congestion problem exists and requires a timely solution. It would also give the Federal Energy Regulatory Commission the right to approve the siting and construction of transmission lines under certain circumstances. One such circumstance would be if the state had denied a permit for a transmission line or failed to make a decision within a year of a power company submitting an application.


"If the FERC says yea, we will assume jurisdiction, it does not necessarily mean they will approve it, particularly if the state has denied approval," Meyer said.


The DOE, Meyer said, has identified an area from north of New York City to northern Virginia as an area of critical congestion. It is proposing an energy corridor in the east that goes through 50 of the 67 counties in Pennsylvania, and 35 of the 55 counties in West Virginia, as well as six counties in Ohio, 47 counties in New York, all of Maryland except Somerset County and northern Virginia. ...


.."I don't think eminent domain should be placed in the hands of a for-profit company to the detriment of the property owners," Stout said.  
Read the Full Article

- While we work under a federal system of government, with states making their own decisions on land use within the jurisdiction, we have a clear conflict with the Federal Constitutional grant to Congress alloqing Congress to enact such legislation as necessary to support viable interstate commerce.  The ongoing hearings at the national level are required in order to obtain a clear and agreed upon process between the states in order for the construction of the electric grid.

Power Line Opponents in Greene County have their Say

Pittsburgh Post Gazette, June 11, 2007

The NIETC designation is important to those property owners because of Allegheny Power's plan to construct a 37-mile, 500-kilovolt power line through Washington and Greene counties, to a power station to be built in Dunkard, Greene County.

When completed, the line would run for 240 miles, through West Virginia and Maryland, ending in Northern Virginia, an area which has been losing power plants. Allegheny Power officials say that the Pennsylvania portion would serve local residents only.

Part of the Energy Policy Act of 2005 allows the DOE to designate critical areas as national interest corridors, and to seize private property if needed. Perhaps the most controversial provision locally is the federal government's right to override state permitting decisions for transmission lines.

If a state denies a permit, makes no decision on it within one year or places too many conditions on a power company permit, the federal government has backstop authority to grant construction permits, superseding state and local regulations.

..."This is power companies having the right to condemn private property for profits," he said. …

…At issue are right of way easements purchased by Allegheny Power three decades ago in anticipation of a power line that would serve the booming steel industry.

When that didn't materialize, property owners thought the company had abandoned the rights of way. Because those deals sometimes didn't make it onto the rural deeds, some owners were recently surprised to learn they were sharing property with the power company.  Read Full Article

- This article is one of the few that has dealt with the issue in an unemotional fashion, recognizing that local opposition, if irrational, may well be subordinated to future federal action in order to enhance interstate commerce.

Farmers and Wind Farms

HPJ, May 5, 2007

J.P. Michaud's article on wind farms detailed in his opinion ways a wind farm can be profitable and yet socially acceptable. 

Farmers should be conscious that wind energy plants are a form of heavy industry. Apart from the turbines, wide access roads are required, many trenches will be dug to accommodate power lines, and eminent domain may be exercised to place power lines across neighboring properties that refuse to sell easements. There will also be substantial damage to the land during the construction phase, largely due to soil compaction and erosion, even if most of it can be returned to agricultural production.

Nevertheless, it is my opinion that wind energy projects could be profitably sited on farms in a socially acceptable way provided a number of criteria are met.

1. The land should be already disturbed by tillage, as recommended by the governor's energy task force. Undisturbed rangeland and native prairie should not be developed for wind farms because of the large area of ground that suffers disturbance during construction. Natural soil profiles and plant ecology cannot be restored following such disturbance and native plants and animals will be negatively impacted.

2. The land should not be adjacent to residential development. Numerous studies are identifying significant health risks for people living near wind turbines. Large wind turbines are visually intrusive, being visible from 18 miles away, and if they mar the views of adjacent residents who are not receiving income from them, they will become a source of local contention because of concerns about reduced property values and diminished scenic outlook.

3. The process of negotiating with a wind energy developer should be a democratic, open, and public process for the entire community whereby all local citizens have a fair opportunity to voice concerns, ask questions, and provide input to the county planning commission. Otherwise, the development may be resented by local residents who feel their rights are being ignored while others are being permitted to profit at their expense.

4. Finally, a thorough, independent environmental impact assessment should be undertaken by qualified professionals commissioned by the government, not the developer, to produce estimates of potential impacts on surface water runoff, wells, birds, game animals, endangered species, and overall ecological health of the area.

The Hays site was selected very close to the western edge of town, where sunsets would forever flicker through spinning blades, largely because of the interests of particular landowners and the proximity of an existing substation. Unfortunately, the site encompasses secluded residential developments that highly value their rural privacy in close proximity to town. To these more than 100 families, the development represents a forcible industrialization that threatens to destroy their rural quality of life. Read Full Article

- The economic benefit of being paid for land to be taken as part of wind "farms" may well be off balanced by the risks and dangers and long-term negative effects created by windmills.

Gary/ Chicago International Airport Condemnation

nwi.com, May 30, 2007

The Gary/Chicago International Airport continues to secure property west of the airport for the 1,900-foot expansion of its main runway.

So far, the airport has not had to use condemnation proceedings to obtain properties totaling about 72 acres, but instead has entered into sales agreements with owners.

Some purchases already completed or agreed upon include the $1.84 million purchase of the 44-acre Beemsterboer Inc. property and the $820,000 purchase of the Truck City of Gary dealership and repair facility.

The airport expansion plan has an estimated price tag of $90 million. It will extend the main runway to 8,900 feet from its current length of 7,000 feet, making it capable of handling large airliners.  Read Full Article

- Throughout the nation, airports are able to obtain federal funds out of the trust, thereby being enabled to expand airports without regard to the economic viability in the community.

Power Line Opponents

Times Community.com, May 16, 2007

Opponents of Dominion Virginia Power's plan to string transmission lines across the Piedmont's placid and historic landscape circled their wagons around Washington, D.C. Tuesday.

They provided federal regulators with impassioned narratives about how their lives would be impacted by the 500-kv power lines and the huge towers that would hold them.

"I've been promised by the experts at Dominion Power that my land is a target for the 15-story power lines they propose to build," said Judy Almquist of Marshall, a retired widow who supports herself by renting out the six houses and apartments on her 50-acre farm in Fauquier County. "Two local realtors told me that my property is worthless right now because no one will buy it."  Read Full Article

- For the opponents that circle the wagons, in all likelihood their activities will be pre-empted by the federal legislation passed during the first Bush Administration.  

Texas Limiting Eminent Domain Power

The Dallas News, Thursday, May 3, 2007

Protections for older, run-down or impoverished neighborhoods and stronger leverage for property owners whose land is targeted for development were endorsed by the House on Wednesday, with more restrictions on eminent-domain moving through legislature.

New legislation would require that governmental entities would have to meet a stiffer criteria before they can declare a property "blighted." The entities could only declare one property "blighted" at a time, instead of entire areas.

The legislation is sending a strong message to the city of Dallas and the Foundation for Community Development which a few months ago was considering a push for stronger eminent-domain powers including declaring entire areas "blighted."

Read Full Article

-While this goes through the Legislature, be not shocked if nothing comes out to protect individual rights.  The Strength of the lobbying organizations in the Legislature can be so great that the protection of individual rights will all to often be trampled.  However, some states have truly been serious about the process and have legislative fair protection for owners.  Hopefully Texas will follow the course!

Atlantic Coast Line

Charleston Post, November 5, 2007

The governors of South Carolina and Georgia are set to unveil a plan this month to create a new maritime agency to build a port along the Savannah River in Jasper County.


The agreement between the states would put an end to a long-running legal tussle over rights to develop the 1,800-acre property, regarded as one of the last available sites on the East Coast where a major container terminal could be built from scratch.


The announcement by Gov. Mark Sanford and Gov. Sonny Perdue could come as soon as next week. The Commerce Department in Columbia said Friday that negotiations had been finalized.

"I think it's an agreement the ports authority's board will approve," he said. .

People familiar with its findings but who are unauthorized to discuss them publicly said the task force is recommending:
--A new dual-state agency to build and operate the port.
--A six-member agency board, with two members from the S.C. State Ports Authority, two from the Georgia Ports Authority and one member appointed by each of the governors.
--Equal ownership of the site.
--An end to any efforts to acquire the land through government condemnation.
--Unwinding a deal that allows the U.S. Army Corps of Engineers to use the property as a dredge- disposal site.

-This article resolves the substantial issue of a State controlling property within its own State. Georgia and South Carolina have been fighting for years over the ownership of a property to be condemned in the other State. Finally, they are reaching a position of working this out.