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

    When one reads about the Brite Canyon Resource Recovery seeking to obtain nine holes of an 18 hole course, one has to wonder whether the condemning authority has any sense of what it is doing.  The destruction of nine holes will make the remainder of this parcel worth far less than one-half of its prior value.      First, it may now be adjacent to a holding pond.  Of greater import is that people who play golf on 18 hole courses expect to continue to play a full round of 18 rather than nine holes.  
    As a hacker who barely gets to nine and only on the rare day in which my friend lets me use his drive as a starting point, I have no great problem with a nine hole course.  However, anybody who golfs on a regular basis expects the full three to five hours to play eighteen holes.  
    On the flip side, when reading the article closely, we notice that this golf course probably is an “eyesore” and not in use.  Does it really have 18 holes or is this really just a fallow former golf course?
 

Tehachapinews.com

Brite Canyon Resource Recovery intends to take control of the derelict 160-acre Golden Hills Country Club and golf course that for years has been an eyesore on Woodford Tehachapi Road, according to sanitation company officials.

The owners of the small sewer company - a division of the Golden Hills Sanitation Company --  recently offered to buy the property from owner Ed Borges of AB Development Co., said Clint Hilderbrand, sanitation company corporate officer.

“We made him a bonafide offer,” Hilderbrand said in an interview May 25 at the company's Old Town office, accompanied by Cody Tellis, who manages the estate of the family of the late Carly Smith. The estate owns Brite Canyon Resource Recovery and numerous other waste water properties in California.

The written offer to Borges was $2 million, Hilderbrand said -- “far more than it's worth.”

“As a public utility we have eminent domain rights. He declined the offer. Based on Public Utility Code 624, we are preparing to file eminent domain.”

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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.  

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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. 
 

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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.

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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.

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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.

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. 

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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.

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Post Trib

School officials were waiting for their attorneys to review the decision.

"(The resolution) is an option they have threatened to exercise in the past," said School Board President Nellie Moore. "If that's what they choose to do instead of a more amicable resolution, then I have no problem with that."

School district attorney Ragen Hatcher was less diplomatic.

"I would think they would've at least invited a representative from the school district to the meeting," Hatcher said of the Board of Works decision.

According to the city's resolution, the impasse comes after three years of "extraordinary good faith efforts" by the city and the airport to reach a deal with the schools.

"The action avoids any more delays to the timetable for the (runway) expansion," Curry said, "and now a court of law will determine the appropriate value of the land."

Why would a school system expect any different treatment than any other owner?  Governments rarely truly provide notice to the owners of property when it decides to utilize the eminent domain process.  However, the process in most States does require some attempt to negotiate prior to the filing of a condemnation complaint.  Indiana, where this taking is to occur, has a process.

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 Gary Post Tribune

But the School Board -- facing a fiscal deficit -- wants $3.75 million for the land. That's terribly unrealistic, even if the schools would choose to preserve the land and include it in its curriculum.

The School Board now is taking the insanity to a new level by spending $30,000 on an appraisal. It would appear the School Board knows acquisition of the land is vital is the Airport Authority, and as a result is demanding an outrageous price.

Litigating the matter isn't the answer. That will be the case if the two sides can't agree and the city proceeds with eminent domain, as it threatened last week.

We hope Mayor Rudy Clay steps in, brings the two sides to the table and issues the following mandate: Don't leave the room until you have settled the matter.

What is good for the airport is good for the city of Gary, including the schools. The airport remains the city's greatest hope for the future. Further delays would be unconscionable.

Often, we need to have the judicial system intervene on behalf of two behemoths, such as a city and an airport.  The Gary, Indiana situation above is not an exception.  The dispute involved federal funds to acquire land versus individual community vested tax dollars.  In the case of education funding, the tax dollars are usually derived from real estate assessments.  The Gary newspaper is simply way off base!

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 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!

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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.

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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.

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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!

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Herald Palladium

BENTON HARBOR - People who own property just east of the Southwest Michigan Regional Airport have until June 26 to accept a one-time offer of $5,350 for air space above their land or risk a lesser price later.

The price could be higher in a few cases through eminent domain, but in most it likely would be considerably less, he said. The easements are needed to meet height requirements for planes that will take off from the expanded runway once it is built.

He said the $5,350 offer to each of the 160 property owners involved is based on a market analysis and typical easement value. The easements allow airport workers - at the convenience of the landowner - to go on the property to trim or cut down trees as needed. The lifetime easement goes with the property if the property is sold.

Scherwitz said all property owners in the easement area were notified by mail about the airport's need to buy air space and were invited to a meeting earlier this week. He said about 50 of the 160 property owners in an area east of North Pike Street already have taken the offer and gotten a $500 down payment. The balance will be paid in about six weeks, Scherwitz said.

Scherwitz said the voluntary easement program saves the airport money because it eliminates the need for individual appraisals, while offering a fair price to owners, he said.

"We'll work with the homeowners. We wanted the voluntary offer to be attractive to people so it would reduce our paperwork. Some have asked us to please remove whole trees," he said. "We also will provide homeowners with a list of trees that, if they want to replant, won't grow very high but will provide shade. We're not pressuring anybody. We're here to answer questions. I'm the rumor buster. We want people to have good information."

The notion of the universal “voluntary offer” does not fulfill the requirement that properties are individually analyzed. However, under Michigan law the process saves the condemner the unnecessary costs of attorney fees and appraisal costs for itself and additional reimbursements to the owner.

There are some substantial issues raised in what are considered 'small' airport easement acquisitions. What are the increased noise and other environment nuisance factors? What are the damages for the loss of the height limitations? What is appropriate just compensation?

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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.

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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.      

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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.

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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.

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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?

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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.

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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.

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Times Herald

Canadian officials are prepared to start a $54 million (Canadian) project to revamp the Blue Water Bridge Plaza in Point Edward.

The project includes a 120,000-square-foot, four-story building to house Canada Border Services Agency, the Canadian Food Inspection Agency, commercial brokers and Blue Water Bridge Canada administrative offices. The project also includes building seven new inspection lanes for commercial traffic.

The project will start this month and be completed in December 2010. The new building will be west of the existing Customs building.

Chuck Chrapko, president and chief executive officer of Blue Water Bridge Canada, said travelers to Ontario barely will notice the project has started.

"It will not divert traffic in any way," he said.

The work is the first phase of what is expected to be a three-phase project costing a combined $110 million.

Phase two includes building secondary processing stations for passenger vehicles and 14 new inspection lanes. Phase three includes new toll booths and toll offices and updating infrastructure.

At the end of the project, which could take between six and 10 years, virtually everything on the bridge plaza will be replaced, Chrapko said.

Timelines for the second and third phases have not

been established. Chrapko said the project is designed in such a way that each phase is not required to be finished but can be depending on need and money.

The design of the new plaza, Chrapko said, increases security by making it less open. Currently, people can walk easily across the plaza from other places, such as the Duty Free parking lot. That won't be possible on the new plaza.

All one needs to do is travel on the Blue Water Bridge. This bridge, which was once a beautiful alternative to going through Detroit to New York State or Toronto, now maintains lines through Detroit Customs to the Canadian side of the bridge. Clearly, no PR blitz is needed for one to understand that something must be done with the plaza. It is simply a decision of how best to maintain the City of Port Huron's commercial existence while substantially interfering with commercial activity because of the acquisition/eminent domain process. 

The bridge clearly will hurt the United States far more than Canada because Canada has been attempting to purchase the land over the years. Canada probably destroyed values by the process, but the same process has been used by the Detroit International Bridge Company for the past 20 years; with some results not totally destructive of individual property rights but other results which created great harm to neighborhoods.

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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?

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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.

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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?

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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!

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Detroit News

A legislative impasse continued Tuesday morning over the location and ownership of a proposed second bridge across the Detroit River between Detroit and Windsor, threatening to derail the 2009 state transportation budget and funding for road projects already under construction.

The transportation budget must be approved by the House and Senate before Oct. 1 to avoid a shutdown of Michigan's Department of Transportation and all state highway projects.

Senate Republicans want to add a stipulation to the budget bill that prohibits MDOT from continuing preparations for a public bridge across the Detroit River without legislative approval.

They favor letting the owner of the Ambassador Bridge build a second, privately owned span next to the exiting bridge, using his own money, before deciding whether a publicly owned span also is needed.

When the six-member House-Senate conference committee deadlocked on the bridge issue Tuesday morning, their session was recessed. The conference committee must approve MDOT's proposed $3.6-billion budget before the full House and Senate get a chance to vote on it.

The second bridge is needed to continue growth of Michigan and Ontario. Without it, Michigan will become second tier in one more area of commerce. Is that what the citizens of Michigan want? Forget about whether Windsor got the better of the deal, instead move on for increased prosperity.

The Michigan Department of Transportation is not a perfect bureaucracy. But what it does not need is legislators nit picking at its basic decisional inclinations. After all they’re a Transportation Commission which is supposed to act as a watchdog.

…Because of the stalemate, Transportation Director Kirk Steudle notified contractors that his department may suspend operations on Oct. 1 -- when the current budget expires -- and shut down road projects across the state.

…If lawmakers can resolve their differences, the House-Senate committee could reconvene later Tuesday to approve the transportation budget. It then would have to be passed by both legislative chambers.

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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.

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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?

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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.

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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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Beacon Journal, July 2007

The Akron City Council intended to vote on the authorization of the city to exercise its powers of eminent domain if necessary to acquire residential property in the middle of the renewal area. 

Notices were to be mailed 15 days in advance of the public hearing, however one of the property owners failed to receive a notice.

-Due process requires fair notice of a hearing in which the final decision to take is made. The courts have consistently taken a position that the judiciary is extremely limited in the propriety of review of the local decision. Therefore, it is imperative that owners have the right to be heard at the time the decision is made in the local legislative body, be it a Township Supervisor Board or a City Council hearing.

The Akron taking may be as much for the opportunity simply to have some development action in the community as it is more than for a public use.

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Pantagraph, July 10, 2007

A Canadian company that wants to contruct a crude-oil pipeline through Central Illinois plans to file for eminet domain power near the end of the month.

Eminent domain remains a last option, however, Endbridge Inc. might begin negotiating with landowners around the same time it files for certificate of good standing...

The 170-mile pipeline would run east of Bloomington Normal from Pontiac to Patoka, affects about 95 landowners in Mclean county, 68 in Livingston County and 65 in DeWitt Count.

-A Canadian pipeline will work its way through Illinois despite the opposition of the local farmers. The issue then becomes one of how owners can be treated fairly. To simply “start negotiations” does not deal with the compensation or the valuation of pipeline takes.

At least there seems to be recognition that the tile fields will require repair.

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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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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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