Eminent Domain Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan, Ohio, Illinois

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!

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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!

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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.

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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!

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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.

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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.

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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.

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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.

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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.

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-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.

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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.

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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.

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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.

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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

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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.

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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.

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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. 

 

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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.

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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.

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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.

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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.

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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.

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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.

 

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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.

 

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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).

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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.

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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.

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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.

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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.

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Washington Business Journal,  June 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.

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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.

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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.

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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.

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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.

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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.

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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.  

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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!

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