Ohio Water Rate Hikes


 Columbus Dispatch

Assuming all the paperwork is in order, Ohio regulators will approve Ohio American Water's latest rate request -- an average 23 percent increase across 16 service areas in nine counties.

That's the way state law works. When the regulated utility can prove and justify the expense, a rate increase follows.

OAW's parent company, American Water Co., started buying up small water companies across the state in 2002. Since 2005, OAW rates have gone up three times.

Ohio American rate increases have averaged 21 percent every two years, including a 30 percent increase in November. OAW sewer rates have gone up an average 19 percent every two years, including a 37 percent increase in November.

Ohio American President Dave Little said that the rate increases were needed to update the water- and sewage-treatment systems.

The Public Utilities Commission of Ohio also negotiates profit margins for regulated utilities. For Ohio American, that margin has hovered around 8 percent. "You can't expect a company to work without profit," Little said.

Kennedy said Ohioans shouldn't have to choose between decent water and affordable rates.

Ohio Consumers' Counsel spokesman Anthony Rodriguez said state law is the problem. "The law says that they are allowed to get a return on their investment as a private utility serving the public and that they are allowed to recover their costs," he said.

For now, Marion fights the increases by pooling legal resources with Tiffin, another citywide OAW service area. That costs, too, Schertzer said, but it's necessary.

"As near as we can figure, Marion has had a private water supplier for many, many years," he said. "A lot of people refer to it as city water, and when rates go up, a lot of times the municipality gets blamed for it."

Taking over the local private water company sounds simple until the stability of the community is shattered by the political brawl. If the community wins,  all the problems of poor administration will follow.


Palmyra Obstacle

The Philadelphia Inquirer

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

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

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

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

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

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

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

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

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

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

Warwick Runway Expansion


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

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

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

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

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

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

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

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

Northwest Connector


 Marion Star

All of the Northwest Industrial Connector except an overpass will be done by approximately fall of 2010, Marion County Engineer Brad Irons estimated.

The $17 million project, which once completed will link Ohio 95 West to Marion-Williamsport Road with a 2.65-mile road, likely will break ground this fall, Irons said. Local officials sought construction of the road to expedite shipping for Whirlpool Corp., the county's largest employer, alleviate heavy truck traffic downtown and open up land along the route to industrial development.

Federal stimulus money totaling $5.1 million awarded for the 4 1/2-year-old project includes a deadline requiring the money to be spent by March 2010, but Irons said the county is ahead of schedule.

"I'm not worried about that date because we're so far ahead," he said, adding that the Marion County Board of Commissioners' adoption of a resolution May 12 moves the project ahead the next step toward acquiring the land needed for the road.

He estimated the entire project including the overpass might be done in fall of 2011.

The resolution moves to appropriate property for the Northwest Connector for real estate owned or used by Ohio American Water Co., Richard A. and Constance L. Sheaffer, R.A. Shaeffer Inc., William and Sandra Bates, Carl and Karen Hamm and Harriman Family Partnership. The county has made offers to those property owners, but been unable to negotiate a purchase price. If unable to reach purchase agreements through negotiation with individual land owners, the county will file an eminent domain action in Marion County Common Pleas Court and proceed with the project as the court sets a purchase price, County Prosecutor Brent Yager said.

Yager said the county will send the land owners a "good faith offer" based on appraisals the county had done by M.E. Companies of Columbus. The land owners will have 30 days to accept or counter the offer.

The agency takes a cavalier attitude about; the ability to utilize eminent domain to acquire and the values of the properties involved. The arrogance in the condemnor could hurt both the owners and the government.


Landfill Valuation


Choice ER

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

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

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

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

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

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

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

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

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

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


Texas Modification

Sealy News

Texas representatives have added additional protection to landowners against eminent domain abuse by repealing the “jury of view” process from the transportation code.

The legislation, authored by Rep. Lois Kolkhorst, R-Brenham, repeals the powerful, but rarely used process known as “jury of view”, which local governments can invoke to remove important constitutional protections usually afforded to landowners. The process gives county commissioners the opportunity to appoint five individuals to determine the path of a road and assess any damages incurred by property owners with no appeals process.

“This is a great example of how getting rid of a law will protect our rights and give more power to the property owners,” Kolkhorst said. “We need to shut down this loophole because it gives the government a way to avoid eminent domain proceedings.”

Landowners who oppose the process say that jury of view allows local governments to be the final arbiters of a land condemnation proceeding and denies affected parties a new trial to review or challenge a condemnation decision.

Critics say the process has sometimes been abused, and has been selectively used by local governments hoping to avoid the scrutiny that traditional eminent domain hearings may bring to controversial projects.

“This law denies the public their constitutional due process to landowner protections. It’s time to get rid of it, and I’m glad my fellow lawmakers agreed,” Kolkhorst said.

The bill passed unanimously and had the support of the Texas Farm Bureau.

By legislative action, Texas is modifying what might have otherwise required judicial nullification of an unconstitutional process. 

First Amendment Encumbered

Leaf Chronicle

The libel suit filed against members of the Clarksville Property Rights Coalition has been dismissed.

In a ruling late last week, Sumner County Judge C.L. Rogers dismissed the libel suit filed by Richard Swift, a former City Council member, and Wayne Wilkinson, a member of the Downtown District Partnership.

The two filed suit after the CPRC ran an ad in The Leaf-Chronicle on May 3.

The ad urged the public to lobby their representatives to vote against the Clarksville Center Redevelopment Plan, whose references to eminent domain proved controversial.

"This redevelopment plan is about private development. Our city government is controlled by developers," the ad said. "Mayor Johnny Piper, Councilman Swift and DDP member Wayne P. (Wilkinson) are all developers."

Rogers ruled that the ad was not libelous because it did not meet the standards of defamation.

"Accusing a public official or public figure of using their political influence to obtain a benefit for others or of themselves or favoring their supporters is not defamation," Rogers wrote in his ruling.

Swift and Wilkinson had sought $500,000 in damages. Under Rogers' ruling, the two will be assessed court costs.

A link to Rogers' complete ruling is available to the right of this article.

For more on this story, see tomorrow's Leaf-Chronicle.

It is tough enough one loses property, but it is unfathomable that, along with the violation of the Fifth Amendment, the individual's First Amendment rights are encumbered.

Twin Cities High Voltage Lines


Minnesota regulators today approved plans to build three long-distance, high-voltage transmission lines, with the condition that one of the lines carry wind energy.

The state Public Utilities Commission granted a certificate of need for the $1.7 billion CapX 2020 project, which involves erecting three 345-kilovolt lines designed to meet the needs of the state for the coming decade.

"It's a great day for us," CapX 2020 chairman Will Kaul said, after two days of commission hearings in St. Paul.

The project, which was pushed by a group of 11 utilities led by Xcel Energy and Great River Energy in the Twin Cities, will have to sign agreements with wind developers for the line that stretches from outside Brookings, S.D. to the town of Hampton in southeastern Dakota County.

Renewable-energy advocates and environmentalists had pushed for that condition on all three lines but agreed to a last-minute compromise hammered out during the hearing today.

All the lines still need permits for their final routes. Some landowners along the Brookings-to-Hampton line told the commission that the state's eminent domain laws governing land-taking will have to be changed to ensure they get a fair price for their land.

Once the approval process is on its way, the landowners looking for assurance of just compensation will be "left in the backwind" so to speak.

Just Compensation in Chicago

Chicago Journal

Brian Elmiger, owner of the restaurant and concert venue Bottom Lounge, found out more than seven years ago that the CTA planned to take his property. So he relocated from next to an el stop in Lake View to the West Loop. Today, Elmiger says he would never have made the move, to a refurbished building at 1375 W. Lake, if he'd known how much it would cost him.

"It is an absolute miracle that we opened again," Elmiger said. "I mean, a miracle."

But Bottom Lounge isn't out of the woods quite yet. The path to reopening involved hiring attorneys, paying for construction and, subsequently, a whole lot of debt. Three years after closing down and almost a year after reopening, Elmiger is fighting to get the CTA to foot a bill that amounts to hundreds of thousands of dollars.

So far, the CTA has forced 30 businesses to relocate to expand the Brown Line. And the temporary closing of el stops for project construction has affected them even more. At first glance, eminent domain seems like a simple law.

"This is the way public bodies get land," said Bill Ryan, a partner at Ryan and Ryan, a law firm that specializes in eminent domain cases. Ryan said there are two big questions that come up in every eminent domain claim he works on.

"One, do they," the public body, "have the right to take the property and, two, how much money do they have to pay?"

The Fifth Amendment says government can't take private property without paying for it, which is where the law leaves room for interpretation. The phrase is "just compensation," and the debate centers around what's just.

"On value, it's a wide-open issue," Ryan said. "It's a regular lawsuit: we have depositions, discovery and negotiations, and if we can't resolve it, then we have trials."

But "just compensation" can also reach beyond property value.

Because the Brown Line Expansion Project used federal funding, the CTA also had to comply with the Uniform Relocation Act, which, according to Ryan, means that the CTA was also responsible for relocation expenses. It's yet another law that leaves room for interpretation.

The $530 million Brown Line project broke ground in 2004 with the goal of providing longer platforms to accommodate longer trains, making Brown line stations accessible to disabled people, and modernizing stations. The CTA says they expect to complete construction by the end of 2009.

Public use requires the taking of land. As this article illustrates, the harm to owners is specific and can be harsh. The just compensation process provides owners the only available remedy when there is condemnation for a public use. Bill Ryan's comments are well stated.


The second Suffolk native appointed to a Hampton Roads judgeship in February said his ambition since law school has been to sit on the bench.

“It’s something I decided I wanted to do while I was in law school,” said Philip Infantino III, who attended Washington & Lee University School of Law, graduating in 1991.

His aspiration to the bench developed as he worked for local law firm Pender & Coward during the summers while he was in law school, he said.

“At that time, I decided I did not enjoy the practice part of law as much as I did the intellectual kind of law,” he said.

In practicing law, Infantino said, it is sometimes difficult to reconcile personal beliefs with a client’s best interest. He has concentrated almost exclusively on eminent domain law during his career.

“Everything you do is adversarial,” he said. “You have to take a position whether you believe in it or not.”

By contrast, being a judge will allow him to be in the position of studying the law and determining the intent of the law.

“I just like reading law and figuring out, ‘What’s justice, what’s right?’” he said. If he had never made it to the bench, he would likely have wound up being a law professor at a university, he said.

Infantino watched the General Assembly vote on his appointment via Internet on Feb. 28. He will take the bench in Chesapeake’s General District Court on April 1 – earlier than most other new judges, since his seat has been open since November. In fact, he already has been substituting as a judge in that position, anyway.

“It should be a rather smooth transition,” he said. “They needed to get somebody in there pretty quick.”

Suffolk attorney Dave Arnold will take over Infantino’s cases.

“I’m very excited to serve,” Infantino said. “It’s a great honor.”

Congratulations to a great eminent domain lawyer.  May you represent our society as well as you represented your clients.


Sheldon Cleaners


HOLLAND TOWNSHIP -- The Ottawa County Road Commission said it needs the property where a popular dry cleaner has been in business for nearly two decades for a project to widen a portion of River Avenue to seven lanes just north of the bridge separating the township from Holland.

However, Sheldon Cleaners' property owner isn't willing to part with the land at the southwest corner of River and Douglas Avenue without a fight.

The Road Commission has filed suit in Ottawa County Circuit Court to acquire the property at 118 Douglas Ave, offering $430,000 price for the 0.16-acre site. Kentwood-based P&L Co., which owns the property and leases it to Sheldon Cleaners, has sued the Road Commission, claiming the commission reneged on an agreement that Sheldon Cleaners could relocate onto an adjacent parcel.

The property was owned by the Road Commission, but was sold last year to the Geenen DeKock Group, LLC, for $214,850, county records show.

"Money is not the issue here," said Louie Cares, co-owner for both Sheldon Cleaners and P&L. "We want what (the Road Commission) promised us."

The Holland Township site is one of Sheldon Cleaners' top three locations among its 30 stores in West Michigan, Cares said.

"It's an antiquated intersection, and the time is now to start modernizing it and improving it," said Jim Bidol, an attorney representing the Road Commission in the eminent-domain case.

The $1.35 million project, which would widen River from five to seven lanes from Howard Avenue to the CSX railroad tracks just north of Douglas, is planned for late summer construction, according to the Road Commission.

One needs to look at the pleadings involved in this case. The taking of the whole property is, seemingly in part, to provide the remainder to an owner of an adjacent parcel in order to redevelop. Only a part of the parcel is needed for the road widening, with the remainder being taken to aid the developer who owns property in the area.

This is not what was contemplated in a recent state constitutional amendment. Further, the Michigan Uniform Condemnation Procedures Act provides that excess land should not be taken to make the project more profitable for the governmental agency acquiring the property.

Preakness facing Eminent Domain

Southern Maryland

Gov. Martin O'Malley proposed legislation Wednesday aimed at increasing the state's power to keep the Preakness Stakes in Maryland, despite potential legal challenges stemming from the race owner's recent bankruptcy filing.

The bill, which has the support of legislative leaders, gives Maryland the authority to acquire the Preakness and the two major horse racing tracks in the state through purchase or eminent domain as a last resort. Canada-based Magna Entertainment Corp, which owns the Preakness, Laurel Park and Pimlico Race Course, filed for federal bankruptcy protection in early March.

Eminent domain is the legal and compensated taking of private property by the government for a public use.

The bill also authorizes the Maryland Economic Development Corporation to issue bonds to purchase the rights to the Preakness and the racetracks.

Existing Maryland law gives the state first right of refusal if the Preakness is sold, but Magna's bankruptcy filings have clouded the issue of whether the provision would still be recognized in court.

In late March the state filed motions with the U.S. Bankruptcy Court in Delaware, where Magna has filed for Chapter 11 protection, to affirm its legal right to purchase the Preakness. Attorneys for the state remain hopeful that the federal judge will recognize its right of first refusal.

But Austin Schlick, the chief of litigation in the attorney general's office, said the state has also been working with Magna's attorneys and that he is "optimistic" the two parties can reach an agreement recognizing the state's right to hold on to the Preakness.

In light of the potential legal hang-ups, O'Malley said the bill gives the state the "maximum amount of flexibility in order to protect the state's best interests under any scenario."

Schlick said the state is wise to push the legislation at this time. Maryland does not understand what it is getting into when it attempts to acquire the horse track. The bankruptcy adds a layer of issues. Good luck. After all, the highest and best use may be a use other than as a race track!

The State is on the one hand omnipresent, but on the other, it is limited by its own constitutional delegations and limitations. Maryland could be in a position which it pays far more than it thought would be required.

Surely, the take will need to be a 'slow take' or the State runs the risk of raiding its own treasury out of pride.  

Difficulty of obtaining tenants


Daily Herald

The former owners of an Arlington Heights strip mall sued the village in federal court Friday, seeking more than $5 million for losses allegedly due to the village scaring tenants away.

Ron Popp and Victor Valenti bought the Arlin-Golf mall, a short strip of stores off Arlington Heights Road just north of Golf Road in June 2001, said their attorney Joseph M. Williams.

Contrary to reassurances given by the village before the pair bought the property, Williams claims, the village announced six months later in January 2002 it was creating a tax increment financing district to redevelop the mall and the adjacent International Plaza at Golf and Arlington Heights Road.

In the meantime, Popp and Victor had put money into fixing the place up, which increased the occupancy rate to about 74 percent, Williams said. But the suit claims that village representatives repeatedly told prospective clients they were 60 to 90 days from taking the land by eminent domain and leveling the buildings.

In one case, the suit claims, a tenant the pair managed to land was told by the village that the municipality actually owned the land, which was not true, the suit claims.

Meanwhile, the suit claims the village paid one tenant, Bangkok Cafe, $30,000 to relocate, and other tenants fled, fearing the mall was doomed, Williams said.

Even though the pair could not retain tenants, the taxes on the property went from $27,000 when they bought to $60,000 when they sold late last year.

The village eventually paid $1.6 million for the Arlin-Golf mall, which the suit claims was less than its true $2 million value. Williams claimed Popp and Valenti sold only because of financial threats the village made against them and the fact that they were on the verge of financial ruin.

Additionally, the suit seeks over $5 million in lost rentals and other expenses.

The difficulty of obtaining tenants when an owner faces the prospect of condemnation is overwhelming. The eminent domain process is difficult under the best of circumstances. However, when one does seek rental reimbursement the local statutes and laws must be closely followed.


The Costs of Eminent Domain

Farmington Independent

For months, area electric utility companies Great River Energy, Xcel Energy, along with nine others from the Dakotas to Wisconsin, have held public meetings to explain a proposed power line expansion project called CapX2020.

But a group here in Dakota County is not buying into it. In fact, the Citizens Energy Task Force argues parts of the project are simply not needed. CETA backers say the proposed 345 kilovolt power line that is proposed to come through parts of Eureka and Castle Rock townships and end in Hampton could pose health problems, and certainly decrease property value.

Perhaps most of all, though, CETA members want to make sure that landowners along the route are fairly compensated for the land that the utility companies will acquire for construction of those power lines.

But one of the biggest issues Maccabee and Topp see landowners facing is their ability to be appropriately compensated for the land the utilities group will acquire for construction of the power lines.

The concept is not a foreign one to the area. In 2007, a group of Empire township residents took Great River Energy to court over a 115 kV power line. One homeowner had initially been offered $14,600 for the easement by Great River Energy, but after an appeal received $55,000. The only problem was, a chunk of that award went to the lawyer who fought for the group.

Topp and Maccabee would like to see something built into the state’s laws that support landowners’ rights, but any such legislation did not get introduced this year, Topp said.

Local owners fighting with low transmission companies seem to be endemic to the system. Making the system fair to the affected owners is difficult.

The costs to the individual owner can be overwhelming. 

Michigan to Get Wind Power

Click on Detroit

The skyline in Michigan's rural Thumb could look a bit like historic Holland a few years down the road under DTE Energy Co.'s announced plan to install 125 wind turbines in Huron County by 2015 -- and 280 within two decades.

DTE Energy officials told Huron County commissioners the company must add 1,200 megawatts of green power to meet the state's new energy mandate. State rules require utilities to provide 10 percent of electricity from renewable sources by 2015.

The Huron County wind turbines eventually could provide 4 percent to 4.5 percent of the company's total power, DTE says.

The Detroit-based utility now generates about 1 percent of its power from renewable energy sources, said Grady Nance, manager of DTE Energy Renewable Energy Development. He said DTE's goal is to have about 3 percent of its electricity generated from renewable energy sources by 2012.

"We're going to be running hard to do that," the Huron Daily Tribune quoted him as telling the county board March 17.

State law requires DTE to buy at least half of the remaining 9 percent of total power that has to come from renewable energy sources from a third party. DTE says it seeks to produce the other half of the renewable energy from its own projects.

It said it will do so primarily through commercial-scale wind projects and some smaller solar projects.

"We will have about 565 (megawatts) of wind energy on our own" in Huron County by 2028, Nance said.

DTE has about 55,000 acres of land easements signed, with about 7,000 more acres under negotiations, according to The Saginaw News.

In response to questions from commissioners, DTE officials said the utility expects to cap the renewable portion of its generating capacity at 10 percent. That's because green power still costs more than power from coal and nuclear plants.

DTE said construction should create about 200 jobs, with groundbreaking expected in 2011.

The new energy plan will affect our communities. Detroit Edison will build one of Michigan's first windmill projects, hopefully not to the detriment of the owners.

Eminent Domain for Transmission Lines


Las Vegas Sun

Even snippets of comments by Senate Majority Leader Harry Reid can make big news. Entire stories are written from sentence fragments grunted in a hallway.

But Friday morning, Reid had time to expand on his thoughts for nearly an hour at a breakfast with more than 30 journalists. It was a fresh opportunity for the nation’s reporters to see Reid unplugged.

He put on quite a show. As his autobiography reminds, Reid offers flashes of wit, impatience and steeliness. Friday, he touched on the war in Afghanistan, AIG bonuses, Supreme Court Justice John Roberts’ truthfulness and his own reelection in 2010.

He also told the journalists they should eat healthier breakfasts.

Here are highlights, condensed and occasionally paraphrased for clarity:

Eminent domain for electrical transmission lines.

We need to have a public highway for electricity. We’re going to have to have eminent domain — that’s condemnation.

U.S. Senator and Majority Leader Harry Reid is blunt. Eminent domain will be used to construct the power lines for the grid. The problem remains who decides where it goes....should it be decided on the State or local level or by the Federal Energy Regulatory Commission?


Blue Water Bridge

The Times Herald

The brother and sister inherited the Port Huron home when their father died several years ago. Now, they could be forced to move based on the newest plan for the Blue Water Bridge Plaza expansion.

"We don't want to move," said Marvin Beadle, 42, looking at a map of the plan, part of the project's final environmental impact statement released Tuesday.

"We want to keep our property," said Verna Beadle, 50.

The Beadles are among a small group of homeowners -- about a dozen -- who, under a previous plaza plan, would have stayed in their homes and not been included in the project's footprint. Among those homeowners, there is conflict about what is best: to have their property bought at a premium by the state or to remain in their homes.

Local officials fought for the homes -- located in two clusters on the south side of the plaza -- to be bought, fearing that if left behind, residents would have to endure years of construction and then life on the fringes of a major international border crossing.

Project Manager Matt Webb said the Michigan Department of Transportation did its best to affect as few people as possible. In all, 125 homeowners, 30 businesses and one church will be displaced in the $553 million expansion.

"We went back and tried to reduce the footprint and make it as small as possible," he said.

St. Clair County Administrator Shaun Groden said the message officials received from residents left behind by the previous plan was: "Oh my God, they are leaving us behind, and we are going to have to live in this monstrosity."

He said people were upset about what Port Huron City Councilman Jim Fisher once described as the "Swiss cheese" effect: Two pockets of homes left behind.

The project will bring to ground level and increase the size of the plaza from 18 to 56 acres. The 56-acre plan, officials said, is much better than the 90-acre one proposed several years ago and better than the 65-acre plan proposed last year.

During the comment period for the draft environmental impact statement, the majority of the homeowners in the area where the Beadles live said they would rather have their houses razed than be left behind, Webb said.

There are some perks to being relocated. The state will pay moving costs and 125% of fair-market value for owner-occupied homes, Webb said. For other homes, such as rentals, owners will get fair-market value, he said.

Meanwhile, state Rep. John Espinoza, D-Croswell, introduced legislation Thursday that would give tax incentives to people and businesses that develop the area once plaza construction is finished.

The plaza plan released Tuesday will be open for public comment through May 4. Then, the Federal Highway Administration is expected to issue a "Record of Decision," which will, among other things, allow the state to move forward with acquiring properties.

Construction, which will begin with rebuilding 2 ½ miles of the Interstate 69/94 expressway, is set to start in 2011 and wrap up in 2016 or 2017.

The single most pressing problem is getting the project determined with certainty and soon.  Delay in deciding what is to be taken will leave the Port Huron neighborhoods surrounding the Bridge in shamble.

Veto override

Clarion Ledger
Lawmakers in the Mississippi House voted overwhelmingly today to override Gov. Haley Barbour’s veto of a bill that strengthens Mississippians’ property rights.

The attempt to override Barbour's veto of House Bill 803 received support from 101 lawmakers, and 19 voted against it. Senators have not made a similar attempt.

The legislation restricts the use of eminent domain to direct public use, with a few exceptions. The government uses the procedure to take private property for certain projects.

Barbour, a Republican, has said the bill would hurt the state’s attempts to attract major economic development projects that provide jobs.

“I don't even believe in overriding the governor except in an extremely exceptional circumstance,” State Rep. Jessica Upshaw said as she urged her colleagues to override Barbour’s veto. “The individual landowner’s rights are something that should not be taken by our government for big business or anyone.”

The veto override requires an emotional and persuasive reasoned act by a legislative body.

Pipeline ten feet from building


In Chester County, it's a fight over eminent domain between 36 homeowners and a natural gas company.

The plan is to replace a 50-year-old natural gas pipeline that goes through Chester County. The problem is that when the pipeline was built back in the early 1950's this was all farms and forests now it's East Caln Township.

Lou is one of the neighbors fighting the Williams Transco Company's proposal. That's primarily because the plan puts a new, larger pipeline right through his property not 10 feet away from his garage. And Lou says that while the company says it's willing to discuss options, he already received legal papers claiming eminent domain over his property.

"That's putting a gun and saying 'let's talk' I have a hard time talking with a gun to my head."

This is a very harsh result. A pipeline ten feet from a building violates every basic safety requirement. One has to wonder whether the owner ever raised the issue during the Environmental Assessment phase.

City of Rogers Files Eminent Domain


With negotiations stalling, the city of Rogers is going through with its threat to use eminent domain at the Rogers Municipal Airport.

The city was negotiating with four leaseholders who controlled three hangars at the airport. Dealings with two of the four have proven unsuccessful.

Deputy City Attorney Jim Clark filed one suit against Lemore Inc. in circuit court Monday. Attorney Tom Kieklak was expected to file a similar suit against Mike Moser on behalf of the city because of a relationship between Moser and the city, but Kieklak was unavailable for comment.

The airport is currently expanding its taxiways, thanks to Federal Aviation Administration grants, and the hangars involved in the suits are in the way of the expanded taxiway A. In both cases, the city offered the leaseholders 115 percent of the appraised value of their lease and their hangars, which is the threshold for FAA reimbursements. City Attorney Ben Lipscomb said negotiations failed, even though the leaseholders did not provide the city with counter-appraisals.

The eminent-domain lawsuit would allow a court to determine the fair value of the properties. In February, when the City Council approved the use of the lawsuits, Mayor Steve Womack said the FAA might be willing to reimburse more than 115 percent of the appraised value if such an amount was awarded by the court.

Airport expansion and hangar valuations are technical and have many pitfalls for which improper values and effective "low balling" of owners with unfairly low appraisals and offers are commonplace. 

Problem Communities Face

South Bergenite

Cherokee Porete no longer plans to move Arlington Valley forward. The redevelopment project aimed to transform a string of light industrial businesses along Porete Avenue in North Arlington into 1,625 homes, retail space and parks.

The developer officially abandoned its plans during a superior court hearing on March 3. Even though the project will not move forward, Cherokee Porete seeks unspecified damages from North Arlington. The redeveloper claims it spent $39 million on legal and engineering fees, among other things.

The project went sour in December 2006, when the developer sued the borough for allegedly failing to take the Porete Avenue businesses through eminent domain and hand them over to the developer, which was a stipulation of the redeveloper's agreement signed by former Mayor Russell Pitman in April 2006.

Additional court dates were scheduled for this week and Superior Court Judge Jonathan Harris will render a written decision another month or so after closing arguments. If North Arlington loses the case, borough attorney Anthony D’Elia has vowed to appeal the case.

Harris hinted at the possibility of a draw. "There could be a situation where nobody breached," he said.

This is the problem communities with failed eminent domain projects face. If things do not go well, they simply buy themselves a lawsuit and commensurate credit woes when the condemnation efforts fail.

East Village

State News

East Village-area property owners upset about a recent Lansing State Journal letter to the editor by an East Lansing official had their say Tuesday at the East Lansing City Council meeting.

In the letter, East Lansing City Manager Ted Staton responded to allegations that the city intends to use blight designations and eminent domain to seize land from property owners.

The property owners in attendance Tuesday said they felt they were being portrayed as trying to extort money from the government. Staton responded by saying his comments were directed to the Mackinaw Center for Public Policy, an organization that had published a separate letter in various newspapers last month.

The land in question is located at the proposed site of the city’s East Village development project, which would replace several student housing units and businesses, including Cedar Village apartments and McDonald’s.

San Diego-based Pierce Education Properties currently is 12 months into a 30-month deadline to complete the land acquisition of the properties located in the planned East Village area but hasn’t acquired any properties.

East Lansing should carefully limit its land planning techniques. The harm which can be done by the threat of utilizing the Takings Clause is limited to true Public Use takings and not pipedreams of planners and politicians.

Deals and Promises


The Ottawa County Road Commission said it needs the property where a popular dry cleaner has been in business for nearly two decades for a project to widen a portion of River Avenue to seven lanes just north of the bridge separating the township from Holland.

However, Sheldon Cleaners' property owner isn't willing to part with the land at the southwest corner of River and Douglas Avenue without a fight.

The Road Commission has filed suit in Ottawa County Circuit Court to acquire the property at 118 Douglas Ave, offering $430,000 price for the 0.16-acre site. Kentwood-based P&L Co., which owns the property and leases it to Sheldon Cleaners, has sued the Road Commission, claiming the commission reneged on an agreement that Sheldon Cleaners could relocate onto an adjacent parcel.

The property was owned by the Road Commission, but was sold last year to the Geenen DeKock Group, LLC, for $214,850, county records show.

"Money is not the issue here," said Louie Cares, co-owner for both Sheldon Cleaners and P&L. "We want what (the Road Commission) promised us."

The Holland Township site is one of Sheldon Cleaners' top three locations among its 30 stores in West Michigan, Cares said.

"It's an antiquated intersection, and the time is now to start modernizing it and improving it," said Jim Bidol, an attorney representing the Road Commission in the eminent-domain case.

The $1.35 million project, which would widen River from five to seven lanes from Howard Avenue to the CSX railroad tracks just north of Douglas, is planned for late summer construction, according to the Road Commission.

Deals and promises with the governmental authority should be carefully drafted and authorized by the appropriate governmental authority.

Still a demand


A jury has awarded the owners of 1.3 acres at the fast-growing Interstate 75-Ohio 63 intersection $900,000 for their property in an eminent domain case growing out of the Ohio 63 widening project.

The Warren County Common Pleas Court jury award last week was about 50 percent more than the state's appraisers valued the vacant store site across Ohio 63 from the Waffle House restaurant.

"The significance of this case is that it demonstrates the exploding growth along the I-75 corridor," said Richard Glazer, Montgomery-based eminent domain lawyer who represented the property owners James and Kimberly Dinus of Naples, Fla.

The state and city of Monroe are jointly acquiring property along Ohio 63 for the widening project from Trader's World east of I-75 to Union Road on west side of I-75. Most of the property owners have reached agreement or are in negotiations on the value of their property. The Dinus case is the first to go to trial.

When it filed its eminent domain lawsuit in 2007, the state offered $335,510 for a partial taking of the Dinus property that eliminated access to Ohio 63.

Glazer argued the partial taking by eliminating access to the property made it useless. The state subsequently converted its case to a total taking of the property. During the three-day trial last week, the state's appraisers valued the site at $602,000 and $651,200, respectively. The Dinus appraiser valued the site at $1,023,399.

Despite the concerns all of us have about the general economy, there can still be a demand for land in contemplation of growth in a community. There are always parcels especially well suited for development in the near term. 

Mr. Glazer apparently did a great job of explaining the potential for development to the jury.

How do you value a corridor?

Trading Markets

While city officials work to raise $40 million to buy the old Norfolk Southern rail line, a city appraisal says the land is worth much less.

The city won't release the appraisal, citing "ongoing negotiations," but officials familiar with it said it values the corridor, the likely route for a light-rail project, at about $6 million. The assessed value of the rail line -- the amount Norfolk Southern pays taxes on -- is $7.3 million.

The $40 million asking price is about what a 2003 Norfolk Southern appraisal determined the land was worth. The line is 10.6 miles long and 66-feet wide., crossing the city from Newtown Road to Birdneck Road.

City officials are trying to pull together $40 million in local, state and federal money. The City Council has informally agreed to put up $10 million.

Mayor Will Sessoms, a light-rail proponent, said the Beach is close to a deal with Norfolk Southern. So debate over what the land is worth, which stalled past negotiations, may be moot.

This is an interesting issue. How do you value corridors? First one should look to the title to determine whether the corridor is held in fee or easement. If in easement, what are the limits of the easement? It is difficult to ascertain the extent of the interest from the article.

California Court gets it right

Metropolitan News-Enterprise

A public entity’s failure to specify—in the resolution of necessity—the public use to which property taken by eminent domain is to be put cannot be cured by putting the land to public use after it is taken, the Third District Court of Appeal ruled Friday.

The justices faulted the City of Stockton for the manner in which it took two parcels on the North Shore of the Stockton Deep Water Channel as part of a plan to develop a multi-use complex, including an arena and minor league baseball park.

They reversed a final judgment and awarded litigation expenses to the former owner, Marina Towers LLC. But they concluded that it would be equitable to allow the city to pass a new resolution of necessity.

All too frequently, governmental authorities self perpetuate the thought that they do not have to rely upon a statutory delegation in order to condemn property. The California courts got it right in this case.

Taking of public use for another public use


The U.S. Court of Appeals has thwarted James Lichoulas Jr.'s attempt to block Lowell officials from taking much of his Appleton Mills complex by eminent domain.

In a decision issued last week, the federal appeals court ruled that a lower court was correct when it rejected Lichoulas' lawsuit, in which he challenged the city's legal right to take by eminent domain the Appleton properties, which includes a defunct hydroelectric power facility designed to generate electricity from the water flow between the Pawtucket and Hamilton canals.

City councilors voted to take Lichoulas' land in April 2006, paying the property owner $2.5 million as compensation for nearly half of the land in what city planners call the Hamilton Canal District project, including the area slated to be occupied by a $175 million state judicial center. Lichoulas argues that amount was inadequate.

Meanwhile, the Federal Energy Regulatory Commission last March 2008 terminated Lichoulas' license to operate the Appleton Mills hydroelectric power project, as that facility is non-operational and has fallen into ruin along with most of the rest of the dilapidated mill complex.

But Lichoulas argued that the revocation of the license is irrelevant because state law assesses the legality of takings at the time the property is seized. The fact that the license was pulled after the taking cannot "taint the taking," he wrote.

He and his attorneys also have alleged that the Federal

Power Act of 1920 prohibits the City Council from using its eminent-domain powers to take the nearly 7-acre swath of land in question because a portion of it was licensed by the Federal Energy Regulatory Commission in 1986 for use as a hydroelectric plant.

The taking of already existing public use for public use has its own set of rules. Generally, there is a requirement that the sate legislature make a specific grant for a taker to take property already being put to public use. An electric plant would be such a public use.

Additionally, a basic tenet of law is that federal acts preempt state action. Here, there is no use. The property is not being used as a hydroelectric plant

Limits Placed on Eminent Domain


If it's passed, a bill currently in the state senate could strengthen property rights for Mississippians. But could it also stunt economic growth for the state? 

During the 2008 legislative session, Jackson State University hoped a bill giving them "quick take" ability would pass so they could take advantage of tax credits for land development near campus. It died in committee.

This year, Senator Joey Fillingane hopes to toughen state law when it comes to eminent domain purchases.

"Under this current status of this law, you would not be able to take private property from a citizen and give it to a private developer simply to try to increase tax revenue," said Senator Joey Fillingane, (R) Sumrall.

David Wade at Mississippi Farm Bureau says it gives property owners true protection.

"It excludes everything but a true public use and that includes ... highways, it includes schools, it includes public utilities," said Waide.

But if the bill was law a few years ago, Senator Walter Michel says Mississippi would never have gotten the Nissan or Toyota plants. Michel considers employers that create hundreds of jobs beneficial also.

Mississippi is having the same problems as so many other States. When a limit is placed on eminent domain will that stop development? Is the community’s desire for a private development more important than private property ownership?

Electric Grid

The New York Times

Environmentalists dream of a bigger and “smarter” electric grid that could move vast amounts of clean electricity from windswept plains and sunny deserts to distant cities.Skip to next paragraph

Such a grid, they argue, could help utilities match demand with supply on the hottest afternoons, allow customers to decide when to run their appliances and decrease the risk of blackouts, like the one that paralyzed much of the East in 2003.

The Obama administration has vowed to make the grid smarter and tougher, allocating $11 billion in grants and loan guarantees to the task in the economic stimulus package passed by the House last week.

But it will take a lot more than money to transform the grid from a form that served well in the last century, when electricity was produced mostly near the point of consumption, and when the imperative was meeting demand, no matter how high it grew.

Opposition to power lines from landowners and neighbors, local officials or environmental groups, especially in rural areas, makes expansion difficult — even when the money for it is available. And some experts argue that in the absence of a broader national effort to encourage cleaner fuels, even the smartest grid will do little to reduce consumption of fuels that contribute to climate change.

In fact, energy experts say that simply building a better grid is not enough, because that would make the cheap electricity that comes from burning coal available in more parts of the country. That could squeeze out generators that are more expensive but cleaner, like those running on natural gas. The solution is to put a price on emissions from dirtier fuels and incorporate that into the price of electricity, or find some other way to limit power generation from coal, these experts say.  

The New York Times, which generally holds itself out to be the most accurate of media, recently prepared an article which is an offering on how the electric transmission industry has great problems in property acquisition. It utilized the comments of Mr. Welch, President of the International Transmission Company, stating that one owner held up a 26-mile line for three years. To the contrary, Mr. Welch fails to notify the New York Times writer, Matthew Wald, that the line traversing the turning point was already serviced by an existing Detroit Edison line.   Further, rather than going parallel to the Detroit Edison line, the International Transmission Company determined it would be best to try to save money by using public right-of-way (roadways), although creating danger to the adjacent traffic, attempting to avoid paying compensation to those who would be harmed.

Finally, there seems to be a lack of research in the article given that one of the three members of the Michigan Public Service Commission strongly objected to the routing proposed by ITC. Interestingly, the Public Service Commission (MPSC) serves generally as a rubber stamp for engineering plans of creating proposed routes. Here the MPSC did not act as a rubber stamp despite providing great deference to utilities.

Eminent Domain and Agriculture


Daily Gazette

CAPITAL REGION — Figures released Wednesday show that six counties in the Capital Region shed more than 58,000 acres of farmland and lost 104 farms between 2002 and 2007.

Results in the USDA’s 2007 Census of Agriculture show Schoharie County experienced the biggest loss in farms while Montgomery County lost the greatest amount of acreage in the five-year period.

Saratoga County, however, stands alone in the region, with increases both in the number of farms and acreage.

Albany County increased the number of farms but experienced an overall loss in total farmland.

The census reports that Montgomery County had 624 farms in 2002 and lost 20 in the five-year period ending in 2007 — but some officials in Montgomery County on Wednesday said they don’t believe there’s been such a widespread loss of farmland.

In terms of land, the agricultural census shows Montgomery County lost 27,421 acres, leaving the total 2007 acreage at 124,556.

Schoharie County lost a total of 54 farms and 17,245 acres of farmland during the period, representing a 9 percent loss in farms and 15 percent loss of farming acreage, according to the census.

“It’s been a long-term trend. I’m saddened,” Schoharie County Planning Director Alicia Terry said Wednesday.

Farming is considered the primary industry in Schoharie County and Terry said efforts to preserve farmland at the local level can only do so much.

Schoharie County has a countywide farmland protection plan and it was the first county in New York state to develop agricultural districts.

Limitations on eminent domain in agricultural areas are a two sided coin.  On the one hand, protection of the resource is maintained.  However, one has to wonder whether this takes away the private ownership rights of the individual owner, who may be limited in utilization of the property for other than agricultural use.

Northeast Pennsylvania Transmission Line

Scranton Times

PPL Electric Utilities is seeking state regulator approval to use eminent domain to acquire more than a dozen sections of right of way still needed for a proposed $510 million transmission line through Northeast Pennsylvania.

In eminent domain applications filed this week with the Public Utility Commission in Harrisburg, PPL said it has been unable to reach right-of-way and easement agreements with 14 property owners — seven in Lackawanna County, six in Wayne and one in Monroe — although negotiations continue.

“We will be very happy if we don’t have to go to court on any of these properties,” PPL spokesman Paul Wirth said Friday. “We hope to reach agreements with as many (property owners) as possible.”

PPL applied to the PUC earlier this month for permission to construct a 101-mile, 500-kilovolt line from its Susquehanna substation near Berwick to the Delaware River near Bushkill. The project is part of the proposed $1.2 billion Susquehanna-Roseland interstate power line.

It is not a surprise that there are fourteen owners contesting a take. For the most part, the utilities try to do it right. However, sometimes they just 'miss the mark' and do not understand the damage being done to the property. Then, the owners have to contest and object, facing the forced acquisition process.

National Electric Act

CS Monitor

To justify taking homes and farms to build the Interstate highway, President Eisenhower cited a security need: Military vehicles must move fast in case of war. Now President Obama, citing a need to curb global warming, wants new transmission lines across America to carry electricity from carbon-free energy sources. Will he also use federal muscle to take people's land, even wilderness?

The question hangs like a sparking high-tension wire over Mr. Obama's plans to plow $11 billion – part of his economic stimulus – into a "smart grid," which is critical to his ambitious goal to curb fossil fuel use by 2020.

Even without a need to help renewables transmit electrons, the nation's electric grid needs an upgrade. Its structure hasn't changed much from the days of Thomas Edison. Blackouts, such as the big one in 2003 that left 50 million people in the dark, are increasing. Its 164,000 miles of lines and 9,200 generating plants are ill-equipped to accept power from small-scale sources such as wind, geothermal, and biomass.

Yet Obama wants to double renewable energy within three years and bring it "to every corner of our nation." Without smashing through local resistance and environmental concerns to new transmission lines, he's unlikely to reach his goal.

One problem is that the best sites for renewables are generally not near major cities. Sun is plentiful in the Southwest and wind in the Great Plains. Most Americans live near the coasts.

The great (and well founded) fear is that the national government will take the place of the state and its local agencies in making decisions.

This could be a serious long term destruction of the federalism process used through the years in the placement of the electric grid. The authority was granted by the legislation three years ago, and now its dangerous engagement is about to take place.   

Batavia Simpson Line

Battle Creek Enquirer

LEONIDAS TOWNSHIP — Progress must march on, but few want it to march through their backyard.

That's the sentiment of residents living in the path of a planned 25- to 30-mile electric power transmission line.

The line, to be built by the Novi-based ITC Holding Co., would cross through Mendon and Leonidas townships in St. Joseph County and Matteson and Batavia townships in Branch County. The $13 million to $15 million project would connect the Consumers Energy-owned Simpson Substation in Mendon Township to the Batavia Substation, which is owned jointly by ITC and Consumers, in Batavia Township.

ITC will install several galvanized steel poles, each 84 feet tall, along the route. The exact path has yet to be determined and will depend on the results of easement negotiations with landowners, said Roger Morgenstern, ITC community affairs area manager. The final path will determine how many poles are needed, Morgenstern said. He said poles typically are 500 feet apart.

The Battle Creek Enquirer article raises a number of very serious issues, not only for the citizens along the proposed ITC line between Batavia and Simpson, but also for all the citizens of Michigan. 

The comment that ITC has received federal regulatory approval comes as a complete surprise. There has been no filing of an environmental impact statement so far as the public knows, nor has there been a federal energy regulatory commission process fulfilled. 

Mr. Morgenstern and the ITC-appointed Citizens Advisory Citizens Council properly moved the lines out of Colon so that a community would not be totally destroyed. This does not signify Aflexibility,@ but rather prudence. 

A recent attorney general opinion (not binding law) that MPSC approval is not required may place ITC in a situation opening itself to necessity challenge. Wayne County v Hathcock contemplated regulatory commission review of takings, especially when there is a profit motive in the taking.   

The issues of the ITC extension from Batavia to Simpson will take months, if not years, to work out. ITC would have been better off obtaining MPSC approval.        

The final comment relates to the notion that the acquisition of these properties will be through a process in which ITC will Anegotiate.@ MCL 213.55 is clear in its intent in language. Prior to making a good faith written offer, ITC must obtain a statement of value or appraisal. It is unlikely that either has been done. 

Columbia University Challenge


The owner of a set of storage buildings in West Harlem, Nick Sprayregen, has filed a lawsuit challenging the state’s use of eminent domain, he said this afternoon. The state has commenced actions to acquire the properties in connection with Columbia University’s planned 17-acre expansion in the area.

In Mr. Sprayregen’s 107-page petition, he challenged the state’s actions as unconstitutional, alleging the development is not intended for civic use. The petition claims that the area is not blighted, as required by law; that the studies demonstrating blight were highly flawed; and that the public approval process was rigged.

Among other claims, Mr. Sprayregen, the owner of Tuck-it-Away Storage, said that the city and state collaborated secretly more than five years ago to determine a strategy for the project, and quotes email excerpts that suggest some skepticism on the part of a city official about the process.

“Where a development agency colluded with a developer to drive out businesses,” the petition says, “vacate buildings, and then run them down, and then hired the developer’s own consultant to give the agency the basis for a blight finding, this case raises the questions of the proper limit of judicial deference to agency determinations.”

Colleges and universities have consistently and historically been treated as "public" for 'public use' purposes. What has occurred in many jurisdictions is the specific constitutional delegation for State University eminent domain actions. Frequently, there have been specific statutory delegations pursuant to a constitutional delegation empowering condemnation upon legislative grant. The Columbia University challenge will likely be peremptorily dismissed. 

Agencies Fight against Delaware


An eminent domain bill will head back to Delaware's Senate for a second time. Senator Rob Venables is sponsoring the bill.

It would make it harder for the government to acquire residential and business properties and then turn them over to private developers. Last year, Governor Ruth Ann Minner vetoed the same bill. It is scheduled for a hearing next week.

Delaware is at the pinnacle of inflexible opposition to any limitation of the government's right to unfettered discretion in taking any property it desires to take. The agencies will fight the proposed legislation 'tooth and nail'.


The Facts

The Economic Development Corp. and City Council will have a joint meeting to discuss all the issues and delays that surround the Freeport marina project.

At a meeting Thursday, corporation members approved a request by Mayor Larry McDonald to come together at 6 p.m. Jan. 20 and offer information about the project’s legal pitfalls and expected final price tag.

“I wanted to air out all the troubles that they’ve had and get everything back on page one,” McDonald said of the corporation. “I want the public to know what faults that they’ve found in the project.”

McDonald said the project’s tab could be significantly more than its original budget of $6.8 million, but he declined to elaborate. Corporation President Dan Tarver estimated a cost of $7.75 million.

Officials began discussing the marina project almost a decade ago with the idea it would help jump-start a revitalization in the port city. But since then, people in town have debated its need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

The last eminent domain battle against the city is with Freeport-based companies Western Seafood and Western Shellfish. Attorneys for those companies, owned by the Gore family, discussed a settlement with corporation officials during closed session Thursday.

Though both parties declined to elaborate on the discussions, Tarver was positive a settlement could be reached at the corporation’s next meeting.

“We think we’ve got a settlement,” Tarver said. “We think we’re on the verge on signing off on dropping everything with Western Seafood.”

Help! If this settles, making fun of the Gores will cease. Freeport truly lacked the first syllable of its name "free" in the whole transaction.

The fight continues

WDEL 1150 AM

A Wilmington auto repair shop owner says he'll try again to get the General Assembly to pass a bill limiting the government's power to seize properties under eminent domain.

Ed Osborne told WDEL's Delaware Afternoon News the legislation is actually a combination of 2 bills.
Audio Here

Osborne, whose shop on "A" Street is on the city's eminent domain acquisition list, says the bill would limit eminent domain seizures to public use projects, like roads or schools.

The bill was vetoed by Governor Minner at the end of the last legislative session, but Governor-Elect Markell said last summer during his campaign that he'd proudly sign the measure into law.

The Kelo fight continues. One thing legislators should be aware of is that if private property rights are trampled as part of the challenge process, there is a greater likelihood that when passed, the legislation is likely to be more stringent on governmental activities.

Court Considers Mineral Rights

GJ Sentinel

The Colorado Court of Appeals is considering a lawsuit questioning whether the state owns mineral rights beneath land it condemned for construction of Interstate 70 east of Rifle.

Gypsum Ranch Co. LLC appealed the case after Ninth Judicial District Judge James Boyd issued a summary judgment in January in favor of the Colorado Department of Transportation.

At issue are leases for oil and gas beneath about 70 acres the state acquired from Agnes Hunt. Although the state took over the land in 1975 through condemnation, it took more than a decade for the state and Hunt to reach a settlement over fair payment for the property. The state paid $110,000.

Gypsum Ranch contends that when it later bought the Hunt estate, it became owner of the mineral rights beneath the condemned right of way. It maintains that eminent domain includes only the subsurface estate needed for support of highway features built on the right of way.

Gypsum Ranch also has sued Antero Resources, which has been drilling for natural gas between Silt and Rifle. Antero land man Bill Pierini previously has said the company executed leases with both Gypsum Ranch and CDOT, to ensure it didn’t proceed with drilling only to find out later it didn’t have a proper lease. Antero suspends lease payments in such cases until the dispute is resolved.

Pierini said that as a general rule, CDOT doesn’t own the mineral rights beneath the highway where Antero is drilling.

However, Boyd wrote in his judgment that CDOT employees said in affidavits that the agency commonly obtained both surface and mineral estates in the 1970s and 1980s, except where prior owners expressly reserved the mineral estates.

Boyd found that nothing in the Hunt condemnation order or record of proceedings distinguished between the surface and mineral estate.

More recently, mineral rights have received more careful attention and become far more valuable in western Garfield County, thanks to the arrival of widespread natural gas development.

The Hunt condemnation proceedings included a substantial dispute over the value of gravel deposits, and Hunt’s contention that they must be considered as part of the condemnation, Boyd wrote. Those deposits are part of the mineral estate, he wrote.

Each State has an individual statutory framework dealing with ownership rights retained by the condemnee when property is taken for right of way. It may be argued that the mineral rights are not needed for the right of way, therefore they are retained by the owner losing surface rights for the roadway. Therefore, most States maintain a statutory framework delineating what is being take and what, if anything, is being retained.

NYRI Powerline

Wayne Independent

The Upper Delaware Council, Inc. (UDC) delivered testimony at a November 5 public hearing convened by the New York State Department of Public Service in Hancock to gather input on the application by New York Regional Interconnect, Inc. (NYRI) to construct a high voltage direct current transmission line on a 190-mile path between Marcy and Rock Tavern, NY.
The New York State Public Service Commission (PSC) will determine by August of 2009 whether to grant NYRI a Certificate of Environmental Compatibility and Public Need for its proposed $2.1 billion power line.
The two Administrative Law Judges assigned to the case, Jeffrey Stockholm and Michelle Phillips, agreed to hold 13 public information forums between October 20 and November 6 in the seven New York State counties affected by the proposed route to personally hear statements and create a record for their review.
The UDC was represented at three of the hearings which took place on Oct. 29 at the Delaware Community Center in Callicoon and Sullivan West Central High School in Lake Huntington, and on Nov. 5 at Hancock Central School in Hancock.

A valid claim of a power line being the cause of substantial environmental damage may be the only defense to the overwhelming power to utility project routing. The Congressional delegation is clear in the public policy support for utility expansion in order to improve the power grid. We can only hope that the profit making endeavors of the utilities will recognize the damage they cause to individual owners and the dangers to the environmental well being of the community.

Authority to Condemn


Cliffside Park, N.J., filed a condemnation complaint in November to gain ownership of a private property in Fairview, N.J., it is renting for a Department of Public Works facility.

The complaint offering $1.3 million for the property says Cliffside Park needs the land and garage as an interim facility until Cliffside Park and Fairview build a planned joint DPW facility in another part of Fairview with a county grant -- a project in the works since 2003.

A provision of state eminent domain law, N.J.S.A. 40A:12-4(a) gives towns authority to condemn and obtain ownership of property in other municipalities, and Cliffside Park is claiming that right in its complaint, Borough of Cliffside Park v. Pedigree Holding Group, Ber-8236.

The property owner and Fairview concede that extra-territorial condemnation is permitted by law. But they are fighting Cliffside Park on grounds that the statute can be used for takings by a town outside its borders only in limited and special circumstances, and only with the permission of the town where the property is located.

Typical examples are when a town with a reservoir in another municipality needs to acquire land to protect the water or when a property immediately across a border is needed to preserve access, they say.

The issue has come up so rarely there don't seem to be precedents on point about the legality of what Cliffside Park is trying. Anthony Della Pelle of McKirdy & Riskin in Morristown, N.J., who represents the property owner in the case, says "one town may not generally use eminent domain to acquire real estate in another town.

Many State constitutions grant governmental entities the authority to condemn outside the geographical limits of the community. One is required to read the constitutional grant. The legislation must be looked at to determine whether the specific delegation to acquire by eminent domain exists in the statutory language.

Landfill Value


After spending the good part of a couple years sending offers back and forth, commissioners authorized eminent domain proceedings a few weeks ago on a property housing an old landfill site.

Monday, the landowner and his attorney met with commissioners to discuss the situation in person.

Wabaunsee County Commissioners and property owner
Winston Amick, represented by Attorney Keen Umbehr, have been debating the fair rental rate for the property, which KDHE is requiring the county to maintain until at least 2026, with the potential for that requirement to be extended.

After several offers back and forth with no resulting conclusion, commissioners authorized the use of eminent domain to acquire the property, according to County Attorney Norbert Marek, who said that the response since that action has indicated that they would rather sell without the eminent domain proceedings.

Landfill acquisitions are difficult to value. Despite the leakage problem and the issues of single and double lining, old landfills may have substantial value.

Future Expansion in Jacksonville

Biz Journal

JACKSONVILLE — The Jacksonville Port Authority is looking at alternative ways to acquire waterfront property for future expansion.

The authority is discussing with several property owners the possibility of entering a long-term lease or an owner-financing arrangement. Under the latter, which the authority prefers, the original landowner would hold the mortgage and the authority would own the property and make annual payments, said David Kaufman, the authority’s senior director of planning and properties.

Attempted land acquisitions recently have been marked with legal disputes and a game of musical chairs, as in the case of the authority originally wanting to place the Hanjin Shipping Company Ltd. on the 167 acres owned by Zion Jacksonville Limited Partnership. The authority later balked at using eminent domain and instead opted to have Hanjin’s terminal share Dames Point with the TraPac Terminal.

Kaufman said the authority is discussing alternative deal structures with the property’s owner, Abraham Zion.


It is amazing that there was once a 'need' to condemn private property for a user who chose not to buy, but rather acquire through a governmental agencies powers to acquire. Apparently the 'necessity' was not there. 


But for the Brigham Moore Firm properly defending the eminent domain action by obtaining just compensation, the owner would have been deprived of basic constitutional rights.   

Property Split in Half

Loudoun Times

Sam and Uta Brown soon may be in a position to answer the question, "Can a working farm survive inside town boundaries, with a major road running through it?"

The Browns insist the answer is "No."

Purcellville Town Manager Rob Lohr said the town has always worked and will continue to work with the Browns to preserve the farm. At the same time, Lohr said, one of this council's top goals is to get the Southern Collector Road finished. It has been on town planning maps for 25 years, and now runs from A Street at Route 690 along the southern edge of the town's boundaries, to the southern edge of the 16 acres in question.

Sam Brown and his brother Timothy, of Middleburg, own the 16 acres just outside town limits. They also own 40 acres within the town limits -- all protected by a conservation easement -- and 45 acres to the south. Sam Brown farms most of it as Crooked Run Orchard, a pick-your-own orchard and farm that attracts up to 20,000 visitors a year.

Purcellville Town Council will decide Dec. 16 whether to proceed with plans to annex 16 acres of the Browns' Crooked Run Orchard into town. If the property is brought into town, the town will be able to use its condemnation power to extend the last unbuilt 1,300-foot section of the Southern Collector Road along the edge of the farm to East Main Street (Route 7) at Route 287.

The Southern Collector Road, if completed, will do little to relieve traffic on Main Street, Sam Brown said, and it will split his farming activities in half. He will be forced to drive farm equipment out onto Main Street and up the Southern Collector Road to get to his land.

"The benefit [to the town] is so small compared to the damage to the farm," Uta Brown said.

-The town has no feel for what happens when a working operation is split in half. Without a doubt the government will claim that this is simply another parcel with little use due to the conservation easement. The reality is that it is being used to the maximum.

Condemnation Driving Urban Renewal

Maryland Daily Record

For many people, the words “condemned building” bring to mind a creaky, dilapidated house with boarded-up windows and caution signs posted: somewhere you don’t dare go without a hard hat.

But in Baltimore, the use of condemnation powers — otherwise known as eminent domain — has become synonymous with urban renewal. The government’s right to condemn and seize private property, sometimes perfectly intact and well-maintained, and convey it to another private owner is the engine driving many of the city’s most important development efforts.

Despite several recent court cases and laws that check the powers of municipalities to take property, condemnations are accelerating in the city: More than $22 million in eminent domain seizures have been authorized this year, up nearly 250 percent from 2007, and nearly 12 times the inflation-adjusted dollar amount of seizures authorized in 2003, The Daily Record has found. These statistics were determined as part of an examination of nearly 1,000 pages of public records covering the last five years.

To put that number in context, $22 million is about seven times what the city expects to spend in fiscal 2009 to fight homelessness, and about 10 percent of what the city will spend on schools...

Here is an article worth reading. There are times the process of taking for transfers might work for the community. However, the risk\reward analysis is a difficult balancing act even in the best of situations.

AEP in Virginia


Sandy and Gene Byrd Harman own a 400-acre Black Angus cattle farm in Bland County, Va. that has been in Gene's family for five generations. Its view of rolling pasture backed by the virgin forests of the Blue Ridge Mountains has remained largely undisturbed for 150 years. "Our landscape could be on any postcard in America," Sandy says.

Five years ago the Harmans feared that their pristine vista would be lost. Their farm lay in the path of a high-voltage line that American Electric Power, the second-largest electric utility in the U.S., wanted to lay across the valley. The 765,000-volt (765kV) line would be an electrical superhighway, built on towers 130 feet high. It would carry three gigawatts of power, easing the strain on an antiquated network of smaller wires that carried electricity between the Midwest and AEP's power plants there, and the East Coast.

Ron L. Poff, AEP's project manager for the line, had the job of persuading the Harmans and 163 other landowners to let the $300 million, 90-mile line pass through their properties. Harman spent a year attending town meetings at which residents "blew a lot of steam," she says. Then in 2006 she agreed to sell AEP an easement over a 200-foot-wide swath of her farm. She won't discuss the price, but AEP has had to compensate landowners not only for property but also for visual pollution

-This writer recognizes the importance of electric transmission capacity. However, the need of the profit making AEP for the owners property rights should not be used as an excuse to shortchange the owners.  AEP is relatively inexperienced in the process, but Bulldozed might be the right word for the way AEP is going about it.  At least Joe Waldo is there to represent the owners in Virginia.

Poletown and Eminent Domain

The State Bar of Michigan will commemorate the 1981 Poletown decision (Poletown Neighborhood Council v. Detroit) on Tuesday, Dec. 2, as part of its Michigan Legal Milestones program highlighting significant legal cases in state history. A bronze marker will be unveiled at the ceremony that will take place at Polish National Alliance Council 122, located at 10211 Conant Street in Hamtramck. The plaque will be permanently installed at Zussman Park outside Hamtramck City Hall at a later date.

What happened in Hamtramck nearly three decades ago still reverberates today. In an effort to bolster Detroit's crumbling economic base, a working-class neighborhood known as Poletown was demolished to make way for a new General Motors plant. This action was challenged by homeowners and small businesses in the area, but was rebuffed by the Michigan Supreme Court in a landmark 1981 decision. The ruling had national ramifications and set a new standard by expanding the power of eminent domain and allowing the definition of public use to include economic development. In 2004, the Court reversed itself.

Read Mr. Ackerman's Speech Here

Marina Liability

The Facts

Economic Development Corp. board members soon will address the docks and sprinkler system required for the Freeport Marina’s completion, but the president of the board says they could run out of money before both items are completed.

Dan Tarver, the new board president, said after the corporation’s meeting last week that the board and the developer, Briarwood Holdings, have yet to agree on who will foot the bill for all items past the $6.5 million projected cost of the marina. Mayor Larry McDonald said the contract signed between the two entities called for the corporation to pay for all costs up to that number, and the developer to pay for anything more.

“I don’t think he embraces the idea,” Tarver said of the developer, Walker Royall. “I think it’s a situation where the reality of the situation has not set in yet, of what the cost overruns are.”

Messages left at Royall’s offices were not returned.

Officials believe a completed marina will help jump-start a revitalization in the port city. But since the project’s inception in the early 2000s, people in town have debated its need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

In the ensuing turmoil, former City Manager Ron Bottoms left and former Mayor Jim Phillips was defeated by McDonald. During the summer, City Council turned over the former corporation board, whose members then fired Lee Cameron as executive director. Cameron had overseen the project from the start…

Freeport always is a bonus for this blogger.  The continuing foolishness of the community which gave rise to Carla Main's Bulldozed is at it again.  Heck, Freeport makes it easy to write about good old time eminent domain skullduggery.  I sure miss it in Michigan now that Hathcock is in force!

Airport Expansion in Philadelphia

Delco Times

In his comments to the Federal Aviation Administration this week, U.S. Rep. Joseph Sestak, D-7, of Edgmont, called a proposed Capacity Enhancement Plan at Philadelphia International Airport “a poorly planned transportation project and a waste of taxpayer funds.”

There are two alternatives for the CEP, with projected costs of $5.2 billion and $5.4 billion, according to a draft environmental impact statement. One alternative would add a new runway.

The aim is to reduce delays, but the CEP would also displace at least 72 residences and 3,300 jobs from Tinicum, including the relocation of a UPS facility, all of which would decrease the tax base for the township and the Interboro School District.

County Solicitor John McBlain also drafted the county’s comments to the FAA for the record. He said the county criticized the authority’s analysis of things like air quality and noise impacts, though it was most concerned about the loss of homes and businesses...

-We have an inevitable difficulty with the expansion of airports. Quite simply, we all love to have the airport reasonably close to the community.

However, if close to the urban base, any expansion necessarily results in huge losses of jobs and\or residents.

Is it really the highest and best use?

Three Village Times

It looks as though the Courtesy Hotel may finally be coming down. The hotel property will likely be sold to real estate developer Trammell Crow Residential, which will build a 150-unit rental apartment complex on the site.

The Town of Hempstead had been holding up the sale because the town supervisor and town board felt that the project was too dense for the area. However, the density of the project has been offset by the donation of an acre of land by the MTA to the town. That acre of property will remain as open space.

The Courtesy Hotel has long been a sore point for residents of West Hempstead. It has been the location of numerous arrests for violent and sexual-related crimes. Some West Hempstead community members have been lobbying the Town of Hempstead for many years to have the hotel closed.

Town officials tried unsuccessfully to close the hotel through the town's public nuisance law. However, that law didn't stand up in court. The best option, many members of the community felt, was to let the sale of the hotel property go through to Trammell Crow. The real estate developer had an agreement to purchase the hotel property and then build a 176-unit luxury rental apartment complex on the 2.7-acre site. However, Town of Hempstead officials believed the proposed 65 units per acre was too dense for the town. The Town Board eventually adopted an urban renewal plan for the area that allowed for a maximum density of 45 units per acre.

It appeared that the saga of the Courtesy Hotel would continue until the town could secure the property through eminent domain proceedings. However, recent developments that have lowered the density of the Trammell Crow proposal will now allow the sale to go forward.

The keys to the town's decision to let the sale of the hotel property and the construction of the luxury apartment building complex go forward were Trammell Crow decreasing the size of the proposed complex to 150 units and the MTA turning over a .97-acre parcel of property to the town to be used for open space. The 150 units in 3.67 acres of property amounts to 41 units per acre, which is within the density the town is willing to allow.

For Hempstead Town officials who believed the original Trammell Crow proposal was too dense, the addition of the .97-acre MTA property proved to be a necessary element.

For valuation purposes, the highest and best use may be the use the condemnor intends to use the property for after the destruction of the present use.


Seizure of Business


The city seeks to demolish the machine shop for a street extension for a YSU project.

YOUNGSTOWN — The city law director wants a magistrate to hand over a small machine shop to the city under eminent domain, and then let a jury decide what compensation the shop owner should receive for his property.

A hearing will be at 9 a.m. Dec. 10 on the city’s motion to seize and demolish the business for a street extension in conjunction with Youngstown State University’s new $34.3 million business school.

Magistrate Dennis Sarisky of Mahoning County Common Pleas Court set the hearing on this and other motions in the city’s lawsuit that seeks to take the Grenga Machine & Welding Co. machine shop and storage facility at 128 W. Rayen Ave.

The city plans to tear down the Grenga building to make way for a northward extension of Hazel Street designed to link the university with the city’s downtown.

The university broke ground for the new business school this fall.

Iris Torres Guglucello, city law director, said the city’s position is that the law requires Sarisky to order the property turned over to the city.

After the Dec. 10 hearing, the only issue that should remain for a jury trial is how much compensation Joseph Grenga should receive for his property, Torres Guglucello said.

Here is all that is wrong with individuals representing themselves in condemnation cases. Without knowing whether his defense is valid, Mr. Grenga relied upon a non-lawyer to file a 'friend of the court' pleading in Mr. Grenga's defense. Does the owner not have a valid claim? There are any number of outstanding lawyers in Ohio who would have represented him. This is not good for the individual owner nor our democracy.

Willets Point Plan


The City Council voted late this afternoon 42-2 in favor of the controversial plan to redevelop the industrial Queens neighborhood Willets Point, shortly after the Council Land Use Committee's 19-2 approval of the plan.

One council member abstained from voting.

The $3 billion plan will turn the 62-acre area into a hub with housing, shops, a school, and a convention center.

Yesterday, Mayor Michael Bloomberg reached a deal with City Councilman Hiram Monserrate, who has been one of the project's most vocal opponents.

The agreement increases the amount of affordable housing from 20 to 35 percent and also provides $3 million in relocation aid for local businesses.

City officials on the Land Use Committee approved of the mayor's deal, and said the plan will bring jobs and housing and be a boon to the struggling economy.

“In times of economic crisis, it is good for the city to be investing in our future. I believe this is a good investment,” said Queens Councilwoman Melinda Katz, who represents the area that includes Willets Point.

The city has said it might use eminent domain to remove the other small businesses that do not leave voluntarily.

Here is New York City making a redevelopment attempt which comes at great risk during very uncertain times. One recognizes that in New York, just about any take is valid. However, should this fail, do we look to a national bailout? If projects fail, could impoverished communities obtain the same relief?

Developer Bails in Indiana

Indiana Business

Cleveland-based Fairmount Properties has pulled out of a $100 million redevelopment project in downtown Fishers, northeast of Indianapolis. The developer says the current state of the economy, combined with the number of homes which would need to be acquired, makes it difficult to complete the project in Hamilton County. A number of public meetings will be scheduled to receive input on the future redevelopment of the area.


During good times, it is often unnoticed when the public provides land to private redevelopers.  Accordingly, people are often more likely to ignore the overall likelihood the project will fail. However, what has occurred in Fishers, Indiana is but an example of what we are facing because of the present financial crunch. The ones left 'holding the bag' will too often be the citizens of the community who elected the public officials that made the ill founded decision.

Clearville Gas Drilling

Altoona Mirror

Ralph Blevins of Claysburg stood at a long table filled with materials on natural gas contracts and projects, picking up stacks of papers, skimming through them and trying to educate himself on what could happen to him in the near future.

Blevins has a gas and oil lease in Kimmel Township, Bedford County, and traveled to the tiny town south of Everett where landowners hosted an informational workshop Sunday to show others the struggles they have faced with a natural gas storage field project in their town.

''The information is overwhelming,'' Blevins said.

He was surrounded by several long tables piled with a chronological overview of the Clearville project, walls with large posters of information on natural gas company Spectra Energy and the Federal Energy Regulatory Commission, which regulates projects such as the one in Bedford County. A couple of videos played in opposite corners of the room at the Monroe Township building.

Dick Eckman, who calls himself the Clearville ''self-appointed watchdog,'' was pleased to see a large turnout at the workshop.

This utility is getting killed by the media here. The reality is that it probably could care less. Apparently Spectra feels the Federal Court system bodes well for condemning authorities. This is not necessarily true, especially when a utility gets a little 'greedy' as is so apparent here.

Placement of Transmission Lines

Salt Lake Tribune

Bear River Valley landowners, angry over Rocky Mountain Power's route for a major northern Utah transmission line, have arrived at a sobering conclusion.

   “The power in Rocky Mountain Power means something other than electricity,” says Richard Nicholas, whose land here will be traversed by the 345-kilovolt line scheduled to begin construction soon.

    “People have no rights, and that's wrong. We have been bullied around . . . Power companies have more power than government!”

   Nicholas' sentiment - if not his blunt appraisal - is echoed by Box Elder County mayors and commissioners. They believe they had no real say in where the 150-foot-wide power corridor goes through their communities and countryside.

-Local communities are regularly exasperated at the conduct of the power companies' routing of lines through the most pristine or populated areas.

The problem is not simply one of location, but rather one of whether the permitting authority, be it the FERC or the state Public Service Commission has broad discretion in limiting the lines in accord with the public desires. 

As set forth in the attached article there may be an additional cost in the establishment of a line in accord with the community request for routing. However, the locals have a right to be heard. The issue is whether the licensing (permitting) authority has the empowerment to review, and the discretion to modify the route. 

If the discretion is available under the Congressional or state grant of authority to the licensing authority the question is becomes, what is the appropriate standard to change the route to satisfy the local community's requests?

An example of the Kelo aftermath


Over the course of the project since its inception in the early 2000s, officials have debated the project’s need. The marina survived six years of political power struggles and court battles. Many opposed the city’s attempted use of eminent domain to secure dockfront property for the marina.

McDonald reiterated the marina project will go through because that was one of his campaign promises. But the new findings will push the marina further behind schedule. Tarver predicted a summer 2009 opening but said it needs to be completed in a timely manner so the city could start getting money back on the lease.

-The Freeport,Texas overbearing and inane destruction of private property for a private use is an example of what makes owners shudder about the Kelo decision. The private use taking involved here will affect the whole community.

Gas Line in Southern Richland County

North Central Ohio

The organization OPORR, Ohioans Protecting Our Resources and Rights, is fighting an attempt by Columbia Gas Transmission Corp. to take control of property rights in southern Richland County.

The group held a public awareness meeting Thursday night at the Clear Fork Adult Center to discuss Columbia's proposal to expand its Weaver Gas Storage Field to the Federal Energy Regulatory Commission.

The expansion encompasses 3,000 acres plus a protective boundary of 9,000 acres of land. OPORR President Van Wade said property owners may lose control of their land to the company through eminent domain which could result in a financial loss to property owners.

Columbia Gas Transmission Corp. said the proposal seeks no change in the volume of gas to be stored in the field and no new wells or pipeline facilities. Columbia says the sole purpose of the request is to protect the natural gas that it stores in the field for its customers.


-The utility does not raise a safety issue. It is hard to imagine the need for an expanded take premised upon the comments of the attached article. It will be interesting to see what the utility provides to the Ohio Public Utilities Commission as the basis for its need to affect the title to so many acres of privately owned land.


The owners in the affected area have done an unbelievable job of uniting in their opposition to the project. One need only look to the website established by the aggrieved owners at www.oporr.com in order to find how to protect individual rights by making a community effort to propound a reasonable position.

St. Paul Port Authority Taking

Twin Cities

The St. Paul Port Authority, tasked with bringing business into St. Paul, is kicking out a profitable, tax-paying, unsubsidized, woman-owned, 48-year-old family business. It is a company that pays its 43 employees — nearly half of whom are union members — an average wage of $24 per hour with full medical benefits. And it leases out the construction equipment that has helped build the Xcel Energy Center, restored the Cathedral of St. Paul, and is adding to Regions Hospital.


While showing this successful company the way out of town, the Port Authority has not found a replacement. What the St. Paul Port Authority is engaged in is little more than real estate speculation with $10 million of taxpayers' money…


The next generation of post Kelo cases will deal with governments that claim property is in some fashion contaminated and therefore requiring acquisition for 'redevelopment'. The real question is whether there is such an immediate danger to the community in the use of the property that a government can enforce a 'reuse'.

Alternative Energy Exploration

Heartland Institute


-This is an intriguing article. It questions the propriety of government tax benefits to the energy 'developer'. The problem is one of wobbly matched pairs. We have subsidized oil and gas exploration for over sixty years.


What is the big surprise here? Maybe, just maybe, because we feel the system allows the 'big guys' to get away with a lot more, putting us in an inferior position. No, I am not turning left or right, it is just this writer looked at where home town favorites are moving in a downward spiral, all the while not receiving the same help as Boone.   

Billionaire financier T. Boone Pickens’ campaign for government subsidies to wind power, advertised in a full-page ad in The Wall Street Journal and subsequently in an op-ed piece in the same, seems erroneous in several respects.

Kentucky American Pipeline

State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.


The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.

Kentucky American has said it has the right to condemn property but seldom uses it.

Company spokesman Brian Wright said in more than 2,000 cases over the last 19 years, KAW has had to ask a court to condemn property only five times.


Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allow the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

Airport pays for delay

The Morning Call

The authority that runs Lehigh Valley International Airport now owes more than $24 million for 632 acres it took more than a decade ago from a developer that planned to build homes and a golf course, a Lehigh County judge has ruled.

A jury in March decided that the Lehigh-Northampton Airport Authority owed WBF Associates $10.4 million for gobbling up the land in 1996. The airport has made only one payment to the company -- $3.15 million on Nov. 2, 2000, according to court records.

So, Judge Carol K. McGinley this month ordered the authority to pay additional delay damages and mortgage interest totaling $16.3 million.

It doesn't stop there. Interest continues to accrue on the award each day until it's paid off. According to McGinley's order, the interest on the money owed for the mortgage is $1,463 per day...


It is amazing that the owner has the fortitude to wait over a decade to get paid. The process of delay can be utilized by a governmental agency to 'wear the owner down', a process completely compromising the constitutional requirement that Just Compensation is to be paid upon the taking of property.

Kentucky American Pipeline

State Journal

Four landowners opposed to the Kentucky American Water pipeline under construction in Franklin County are questioning the company's right to acquire an easement through condemnation.

They're claiming that KAW "a private for-profit water company, does not, under Kentucky law, have the power of eminent domain to condemn easements on private property in Franklin County."

They live along the pipeline route and filed a civil action Friday in Franklin Circuit Court.

The "petition for declaration of rights" " filed by attorney Tom FitzGerald " says the plaintiffs are uncertain as to their right to freely decline KAW's request for an easement and are unsure if KAW has the right to condemn an easement on their property should they decline KAW's request.

FitzGerald said in his search of Kentucky laws, he did not find one that gives KAW the right of eminent domain for the construction project underway.
Kentucky American has said it has the right to condemn property but seldom uses it.

… The pipeline will run one-tenth of a mile in Owen County, 15.3 miles in Franklin County, 10.7 miles in Scott County and 3.8 miles in Fayette County.
The entire project is scheduled for completion in early summer of 2010.

Kentucky American could simply supply the statutory basis for its right to use eminent domain and be done with it.  If a statute allows the taking of private property for water transport purposes, Kentucky American Water will have the right to condemn.

Tenants' Rights

South Town Star

With negotiations over the Orland Plaza at an apparent standstill, Orland Park has begun condemnation proceedings against the owners of the village's oldest shopping center.

Orland Plaza owners and the mall's tenants were notified Tuesday after the village board approved an ordinance Monday and filed court paperwork to begin eminent domain proceedings Tuesday.

But both village officials and the property owner say they're happy to return to the bargaining table to negotiate a deal for the land the village wants near 143rd and LaGrange Road. Orland Park wants to extend Jefferson Avenue, Ravinia Avenue and a third street into the new Metra parking lot and development as part of its $100 million Main Street Triangle project.

"It's definitely our intention to keep talking to the property owners," Orland Park's assistant manager Ellen Baer said. "That's our intention to keep moving with the property owner. At some point we have to get the (legal) process going. We would certainly prefer to come to an agreed-upon price with the property owner. They have not countered our offer. They rejected our offer. I couldn't even tell you how far apart we are."

Eminent domain is a government power to seize private property for the public good, with the government having to fairly compensate the property owner. To begin the process both the village and the property owner were to get appraisals of the property to begin negotiating a fair price. George Gee, one of the property owners, said his attorney asked the village for a copy of its appraisal, but didn't receive one. As a result the negotiations stalled.

…While the village is offering relocation packages for the businesses it is leaving negotiations over the leases up to the property owners. Some of the leases including options for renewal extend to 2020. She said each tenant's relocation package would be different. The tenants would receive 90 days notice before they had to move.

All too often, tenants are left with little relief when they and their landlords are condemned.  However, many states do have statutes, which at least partially protect tenants.  The Uniform Relocation Act is losing its potency, minor as it was, in many states because a project not utilizing Federal funds does not have to follow the Federal act.

Casino Taking

The News Dispatch

"I believe the end is near," Mike Bergerson, attorney for the Michigan City Redevelopment Commission, told commissioners Monday.

He was talking about an end to legal wrangling between the city and the owners of Trail Creek property at the corner of Michigan Boulevard and Eighth Street. The city wants to obtain the property through eminent domain while the owners have said the city should purchase the property at current market values.

Bergerson said both sides will meet with a mediator on Sept. 22 to resolve differences. If an agreement isn't reached, an Oct. 9 hearing date has been set, at which time an appraiser would be appointed, Bergerson said.

"Ultimately, if the parties can't come to a resolution through mediation or other discussion, the court has set a trial on Jan. 8," he said.

Bergerson told commissioners that negotiations are proceeding for the property purchase and relocation of Blocksom, now located on Trail Creek property targeted for redevelopment. He said an Oct. 6 negotiation session could be the last one.

In other business, John Pugh, director of city planning, said results of a market analysis of the Lohan Anderson plan for the city's North End and Trail Creek corridor will be presented at the Oct. 6 Redevelopment Commission meeting. Tracy Cross, a national residential market analysis firm in Schaumburg, Ill., was selected to conduct the analysis.


Eminent domain use to expand casinos seems to be the mode of expansion on the cheap in more than just New Jersey.  The Blocksom take is for a casino expansion, be it for a parking building or just accessory amenities to the casino.

Waterfront Taking


On Thursday, there was a rally pitting homeowners against government.

The Johnson's Crab House is in the cross-hairs of Portsmouth City Council, which has voted twice to condemn the property in order to turn it into a public park.

Three generations of Johnsons own and operate the Johnson's Crab House - a place where you pick up live or steamed crabs and go.

For 14 years, the Johnsons have owned this business on Scotts Creek - one that's been on the property through other owners since 1913.

Their Attorney, Joe Waldo, is an eminent domain expert, "It's the old adage. The new guy comes in, and the old guy has to go. That's not right in America."

Eminent domain laws empower the state to take private property for public use.

…The problem now, there's so much bad blood between the two sides, a middle ground may not be reachable.

Again, we have the individual suffering at the unfettered power of eminent domain retained by the local government.  The worst thing about owning waterfront property which is allegedly "underutilized" is that the government will show up at the door to place the property to another use via the eminent domain process.

Acquiring Property to Stop Development

Sherwood Voice

 Task force member Mary Peyton was interrupted several times by members asking whether she didn’t have a vested interest in the project because she was doing real estate work for another of developer Charles Hinson’s subdivisions.

The civil attitude Maumelle has promoted over the years seemed to go by the wayside for the sharply divided panel. At most city functions, speakers have been discouraged from speaking directly to individual members or audience members, bantering with them and especially from interrupting them.

Apparently opponents to the peninsula development have created a new plan for thwarting its development — condemning the property under eminent domain.

Jeff Van Patten, a Maumelle resident and task force member who led his Manitou Drive neighbors in opposing the plan earlier this year, first proposed the purchase of the peninsula by the city.

With a flip chart to explain his proposal, the North Little Rock developer said he was still opposed to the watered down plan and told task force members he believed that if his neighbors went on record that they won’t give up, the city should condemn the land and buy it…

…Davis said the law allows a city the option to obtain property for a public function and ensures that the owner is paid the fair market value. She said the City Council would have to vote for condemnation of the property and the city would have to file condemnation proceedings in court…

…Van Patten said his idea was to pay the developer a fair market value for the land. Audience members suggested it could be turned into a park, one of the original uses for part of the land. Van Patten’s group opposed this, suggesting it would bring too much traffic through their neighborhood and bring in the wrong kind of people at all hours of the night…

…Peyton said the issue about building in a flood plain would be up to the federal government to determine whether the buildings could withstand a flood. She said she and Maumelle engineer Bob Holloway had seen a lot of developments opposed by residents citing traffic, such as the Osage development. She said Osage opponents suggested the new residents would kidnap babies, sell drugs and do things behind trees…

Nothing is more dangerous than attempting to acquire property on the cusp of development in order to stop the development.  The profit is effectively built in by the time the developer has the project plans, much less the approval.  Jumping into take the development away, especially to benefit other developers, is not Public Use as generally contemplated by the Constitution. 


Nashua Telegraph

Pennichuck Corp. has named Roland E. Olivier, a longtime corporate attorney, to a new position of general counsel to guide the company in its eminent domain fight with the city of Nashua.

The company said Monday that Olivier also will direct Southwood Corp., a land holding company.

Olivier also said that he looked forward to working again with Pennichuck chief executive Duane Montopoli, who also once worked at Hitchiner.

At the end of July, the state Public Utilities Commission ruled that Nashua could acquire Pennichuck's waterworks for $203 million plus a $40 million mitigation reserve. While the city considers whether it wants the utility at that price, Pennichuck plans to appeal the ruling.

Thus far, Pennichuck has relied on outside counsel. That would still continue, but Olivier said he would provide some in-house guidance as the company makes decisions on the matter down the road.

Olivier said that most activity at Southwood has been put on hold while legal battle with Pennichuck continues but that the subsidiary "would continue to act as an excellent steward for the watershed for the towns that we serve."

Condemnations of utilities need a full time participant outside of the normal corporate governance structure in order to properly defend the business from an aggressive eminent domain action.  Forced acquisitions require a full time special assistant to guide and protect the corporation.  The guidance of the defense takes a full time employee to guide the work with outside counsel.  The issues run the gamut of trial preparation, leadership and protection of the institution.  Pennichuck is following the required route in defense of the its perpetuation.One has to wonder why this case was not removed to the federal court.  

Asking Judge to Reconsider

Indy Star

Hamilton County officials have decided they want a judge to reconsider his ruling in an eminent domain lawsuit that would provide additional parking in downtown Noblesville.

Superior Court 1 Judge Steve Nation ruled against the county in July in its attempt to obtain land through condemnation of McMillan's Auto Care in the 500 block of Conner Street.

The judge said the county's case was flawed because it failed to show how the property would be used or even why it was needed.

County commissioners filed a legal motion Friday to correct errors in Hughes' ruling. Chuck McMillan, the property's owner, has until Sept. 30 to respond to the motion.

In his initial ruling, Nation noted the county had access to 344 parking spaces leased from Riverview Hospital and said their availability made it less crucial for the county to take over the McMillan property.


-Governmental agencies all too frequently prevail in these uncertain cases of unknown or unjustifiable desire to take property. 

Some day, the courts will really review whether the finding of a taking is indeed an error of law or abuse of discretion, a standard that all too often leads to a result where the government is perceived to make no mistake even though there is clearly a mistake.

Clear Fork Valley Storage Field

WMFD TV- Click to see video


A citizens' group formed in the Clear Fork Valley is ready to do battle with a corporate giant.

Representatives of Ohioans Protecting Our Resources and Rights, called on the Richland County Commissioners to outline their disagreement with the Columbia Gas Transmission Corporation.

Butler resident Van Ross Wade says the company has notified residents it wants to enlarge its wheeler gas storage field from the eastern edge of Butler and Millersburg.

No compensation has been offered, citing eminent domain. The grassroots group meets from 7 to 9 p.m. each Thursday at the Clear Fork Adult Center in Butler. The public is welcome to become involved.

-The individuals involved in this newscast apparently are not being fully informed by Columbia Gas as to their rights. Has the utility authority approved this project?  Did the owners give up their storage rights?  Is a fair attempt to resolve premised upon the principals of just compensation being made?  Valuable interests are being taken.  The owners should be fairly compensated as part of the process

Detroit Bridge

Detroit News

The Michigan Court of Appeals on Wednesday confirmed an earlier Wayne County Circuit Court ruling that the owners of the Ambassador Bridge don't have the power to condemn property for access improvements being undertaken through an agreement with the state.

The higher court also cited a rarely heard legal principal, "the Absurd Results Rule," to reverse part of the lower court's ruling, ordering the Detroit International Bridge Company to pay the cost of a decade long legal fight with the owners of a former duty-free store.

Appeals Court panel of judges Patrick Meter, Michael Talbot and Deborah Servitto wrote that the government never intended to extend its powers of condemnation to a private company so the expense the landowner had to bear to fight this unjust action should be born by the bridge company. To force the landowner to pay "would be patently absurd and unthinkable," the judges ruled in citing the Absurd Results Rule, which is applied to avoid results like this that are "manifestly inconsistent with legislative intent."

The bridge company had appealed the Wayne County Circuit Court ruling that threw out a condemnation lawsuit the company brought against the Commodities Export Company to obtain land the bridge owner claimed was needed for access improvements under agreement with the Michigan Department of Transportation. The company claimed the state's powers to condemn property came with the state agreement. Both courts said the power belongs solely to the government.


-The power to take property requires a specific legislative authorization empowering the entity with condemnation authority.  Here is a situation in which the court found that there was no statutory language allowing the private Detroit International Bridge Company to acquire by an eminent domain case.


Hutchinson News

By passage of a resolution, the Reno County Commission took the first step this week toward acquiring land by eminent domain for the future roundabout at 56th Avenue and Plum Street.

Three parcels - on the northwest corner, southwest corner and east of the intersection - are involved. The owners are Reno Western Corporation, Andrew and Elizabeth Klamm, and Robert and LeslyeDill.

Concern about the amount of money offered for the land and the loss of the land figured into owners' reluctance to sell, according to county officials.

The roundabout will be built next year. The heart of the intersection will be shifted west of the current intersection. Without that realignment, a residence on the northeast corner would have been directly affected by the enlarged intersection.

District Court would appoint appraisers to evaluate property values. Either the county or the property owners can appeal the value that emerges.


-Road commissions think taking land for a roundabout is a simple deal.  The roundabouts can seriously diminish the remaining value after the partial taking in States, which maintain a section line (mile road) road system, because the four ninety degree corners are already built.


Pinion Canyon

The Pueblo Chieftain

Rep. Mark Udall, D-Colo., is asking Defense Secretary Robert Gates for official assurances that the Army will not use condemnation in trying to acquire another 100,000 acres for the Pinon Canyon Maneuver Site northeast of Trinidad.

Udall sent the letter Friday, just two days after an emotional confrontation between ranchers opposed to the expansion and Army Assistant Secretary Keith Eastin in Trinidad. Eastin hosted the meeting to tell ranchers the Army wanted to deal with "willing sellers only" and would not condemn land in trying to add another 100,000 acres directly south of the current training area.

The ranchers, who have fought the Army's expansion plan for more than two years, walked out of the meeting. They told Eastin that Congress had specifically approved a ban prohibiting the Army from any work on the Pinon Canyon expansion in 2008. A week ago, the House approved legislation that would extend the ban through 2009 as well.

Udall had taken part in an earlier meeting between Eastin and the Las Animas County commissioners and afterward said it was encouraging that the Army was promising to abandon the expansion if they could not find a willing seller to provide another 100,000 acres.

Ranchers fighting the expansion are concerned that if the Army can find a willing seller for some acreage, it could isolate other private land - giving the Army even more reason to use eminent domain to consolidate its holdings. While Eastin repeatedly told the ranchers the Army is not interested in condemning any property, those assurances were met with deep skepticism. One of the long-festering issues in the bitter dispute is the Army's past assurances that it would not seek additional land around Pinon Canyon, some of which was acquired by condemnation in the 1980s.

-The “willing buyer\willing seller” purchase, as the only way the government will purchase property, is a system that assures the inevitable; i.e., the military will be the only purchase in the area. This will be because everyone assumes that the moment there is an emergency, the government will simply acquire the property interests that remain in the area after all the 'voluntary' purchases are made.

Pipeline In Pennsylvania

Altoona Mirror

Spectra has begun work on a proposed natural gas storage field and pipeline system after being approved by the FERC last month.

Shortly thereafter, however, residents who will be affected by the project contacted FERC with concerns, forcing the commission to order a rehearing and consider the issues they brought up.

In the letter, the landowners, who fear a premature use of eminent domain by Spectra, asked for the FERC to use its power to give them information that could be helpful in negotiations with the Texas-based company.

…The landowner letter asked for a response from the FERC before today.

…One of the landowners' largest concerns is that of possible natural gas and oil reserves in a formation known as the Marcellus Shale, which runs through most of the area in question.

If a storage field to hold products from across the nation or other countries is put into place, drilling for reserves that already may be there can not be done because of a possibility of explosion or other dangers to the properties.

Spectra, however, insists that no test wells have been drilled to prove that the Marcellus Shale holds reserves.

-The situation in this article is very similar to the Washington Ten and South Romeo gas storage condemnations in Michigan.  The owners are probably too late in the process to stop the taking.  Further, FERC is less than totally responsive to objections by individual owners being taken by eminent domain, seeing their decision as a Federal policy rather than local action.  However, FERC is not seeking to limit the owners' rights to just compensation.  The storage rights do have substantial value, which clearly is not being paid in this particular Pennsylvania case.

Clearville Storage Rights

We Are Central PA

A Texas-based company wants to put natural gas wells in Clearville, Bedford County, and they're trying to use eminent domain to do it. Some property owners there say they're being treated unfairly.

Paul Stup and other several landowners had a lease agreement with a company PG&E. That company drilled on their property and the people got royalty checks from the natural gas produced. In their contract, they had a clause that it would be just drilling and removing not storage.

In storage a company brings in natural gas from outside the area and puts it into the ground like a storage tank.

A couple years ago the PG&E sold the lease agreements to Spectra, a Texas-based natural gas company, and Spectra wants to store natural gas in Bedford County…

Most states will utilize their gas fields for storage and resale.  This is extremely profitable for the utility company 'subsidiaries'; which receive hefty stipends for storage and resale during high need months.  The owners can be paid fairly when eminent domain dispossess their ownership rights, but only when if the just compensation process is fairly utilized.

DTW plans on hold

Detroit News

Detroit Metropolitan Airport is expected to end a bitter battle with Romulus leaders by shelving plans for a controversial fifth parallel runway the city claimed would displace 3,500 residents, close two elementary schools and wipe out nearly 50 businesses.

Both sides expect the agreement to shift the multimillion-dollar runway concept from the airport's original master plan to one they can revisit if growth warrants. The agreement will be voted on Thursday when the Airport Authority Board is expected to meet, according to Taylor Mayor Cameron Priebe, one of five city leaders involved in the project. ...

-This should not come as a surprise.  Airport traffic is down dramatically.  A fifth runway at Detroit Wayne County Metro Airport would have put the airport a step ahead.  However, what would it be a 'step ahead' of?  The demand for flights has dwindled, so why threaten condemnation with a proposed eminent domain project?

Fairness in the Judicial Process

STL Today

A St. Louis jury awarded $2.8 million on Friday to the former owner of two acres just north of the Edwards Jones Dome downtown in a fight over eminent domain.

The city's Land Clearance for Redevelopment Agency condemned the two-acre tract after the owner refused sell it in 2005 for $523,000.

The property, a city block bordered by Sixth, Seventh, Carr and Biddle Streets, was included in the "Bottle District" redevelopment plan for a $226 million entertainment destination including a restaurant, concert venue and bowling alley. It has not yet come through.

A commission of three attorneys set the value of the property at $1.2 million. The city's agency paid that price and took control of the land. But the owner, McTayd L.C.C., appealed to a St. Louis jury, which heard evidence last week and reached a unanimous verdict for more than twice as much.

-The decision of  the jury on this parcel, bordering on the downtown development is a great example that there can be fairness in the judicial process.  This action was tried brilliantly by land owner attorney Robert Denlow of Clayton, Mo.

Challenges to Legislative Change

Delaware Online

Members of the House and Senate have said a new eminent domain law is a priority. Last week, in an attempt to get the nod from Minner, both removed the state Department of Transportation, which condemns land for road construction, from the legislation.

Although the bill came partly as a response to the riverfront squabble, it also was a reaction to the 2005 U.S. Supreme Court decision in the Connecticut case of Kelo v. City of New London. In that case, the nation's highest court ruled that the taking of private property as part of a comprehensive redevelopment plan was a permissible use of eminent domain because the public at large benefits from the redevelopment.

Kelo caused a backlash, and more than 40 states subsequently passed laws to rein in the use of condemnation powers for redevelopment efforts.

-This is another example of how difficult it is to legislate change in the condemnation power.  In all likelihood, the legislature in most jurisdictions can override a gubernatorial veto. But it takes a whole lot of stomach and a supermajority in most states to override.

This is but an example of why so many seeking to limit the overwhelming power of eminent domain go to the referenda process for relief

Failure to Refer Vote

Sioux City Journal

An eminent domain law passed by the South Dakota Legislature this year will take effect Tuesday as scheduled.

Secretary of State Chris Nelson says a group that wanted to refer it to a public vote was about 1,600 signatures short of the number needed to put it on the November ballot. Referral to the ballot would have kept the law from taking effect July 1.

The law will help the Dakota, Minnesota and Eastern Railroad and its proposal to expand to Wyoming's coal fields. It speeds up the process when a railroad asks to use eminent domain to cross private property.

-Referenda is available in most states. However, the availability is not enough.  If citizens desire to challenge the legislative action, there must be basic support throughout the jurisdiction.  South Dakota citizens maintained a vocal opposition to the DM&E project.  Apparently, the group was either not strong enough to obtain the needed signatures to be on the ballot, or not organized enough, or maybe the public did not maintain the same opposition. 

Residents Leaving Baltimore


Baltimore's use of eminent domain and high property taxes have caused residents and businesses to leave the city, according to a report by a Loyola College economist.

The city's policies especially in the developing Charles Center neighborhood and the Inner Harbor have resulted in Baltimore's high crime rate, poverty and declining neighborhoods, Stephen J.K. Walters wrote in the report, entitled ''Baltimore's Flawed Renaissance.''

Baltimore residents fear the use of eminent domain, and because of that are less likely to improve properties and many ultimately leave the city, the report said.

The report also cited the city's highest-in-the-state property tax rate. High taxes caused the city to give major companies tax breaks and subsidies, money the city could have better spent in ways that helped all Baltimore residents, Walters wrote in the report published by the Institute for Justice, a libertarian law firm in Arlington, Va.

Such policies ''doomed the majority of the city's neighborhoods to continued decay,'' the report said. ''Baltimore is today two cities, separate and unequal, not in spite of its extravagant and interventionist redevelopment program, but because of it.''

Matthew Crenson, an emeritus professor of political science at the Johns Hopkins University, said the report did not address the effects of deindustrialization, school desegregation or the 1968 riots. The report also does not indicate whether Baltimore uses eminent domain more than other American cities, Crenson said.

-It certainly puts a crimp on trying to place improvements on the parcel, when individuals know the government will acquire their property in order to transfer it to a developer, .

When developers know that if they want to develop, and the community will acquire the property for them through the eminent domain process; developers will never provide an offer to purchase at fair market value, thereby lowering demand in the market.

US 24 Taking

Toledo Blade

The state wants to use a small part of the land of Eugene Ward, on Box Road near Grand Rapids, Ohio, for the new U.S. 24. ODOT is offering Mr. Ward $300 for the land; Mr. Ward is holding out for $3,000. A surveyor’s measurement is in question. The state says past errors are common in acquisition cases.

-This is a balanced article on the Ohio Department of Transportation acquisition process.  However, the general problem in the process comes thru 'loud and clear' in the agency's disregard for the flooding effect caused by the taking. 

Uphill Battle in Rail Condemnation

Grand Forks Herald

The signatures still need to be verified, but a group trying to keep a South Dakota law on land condemnation from going into effect has turned in petitions to put the issue on the November ballot.

The group Protect Private Property wants to kill the law passed this year that would speed the hearing process for a railroad to take property under eminent domain.

It's scheduled to take effect July 1 and was prompted by the Dakota, Minnesota and Eastern Railroad's plan to expand and improve its line to haul coal from Wyoming to Minnesota.

More than 19,500 signatures were turned in Monday. If nearly 17,000 of them are valid, the law would be suspended until November.

The railroad says it has been working with landowners to acquire rights of way but might need to use eminent domain in some areas. 

-The group fighting the condemnation has a true 'uphill' battle.  First, the voters will look at the referendum issue closely.  Second, if a vested right is now taken from the railroad, the citizens may have to pay Just Compensation to the RR system for its lost vested right!

Local Government Attacks Private Use


Representative of local governments across the state are criticizing a bill that limits the use of eminent domain in Delaware to public purposes.

The bill, sponsored by Laurel Democrat Robert Venables, was scheduled for a Senate vote later today. It would limit the power of governments to seize property through eminent domain to instances where the land would be taken for public use.

The bill specifically states that public use does not include increasing tax revenues, the local tax base, or jobs through private land owners or economic development.

Representatives of the Delaware League of Local Governments gathered at Legislative Hall today to voice their opposition to the bill, as well as others that they believe infringe on local authority.

George Wright, executive director the league, said the eminent domain bill is an attempt to take home rule away from local governments.

This article is an example of one of the few times a local government has been at the forefront of attacking private use takings. Generally, the local agencies look for some specific non-governmental agency to "carry the water".

Reaching too far

News Busters

It has been nearly three years since the Kelo v. New London ruling by the US Supreme Court, and just short of two years since the city of New London, CT settled with the final two Fort Trumbull holdouts, Susette Kelo and the Cristofaro family.

The Supreme Court's majority, in their June 2005 Kelo ruling, declared that "public use" as stated in the Fifth Amendment to the Constitution really means "public purpose" -- that is, instead of the government being able to take land through eminent domain only for the purpose of building a public structure or creating a public service (road, bridge, school, park, etc.), the government can take land for any reason it believes a worthy one. In the case of New London, the city believed that demolishing occupied, functioning houses that had stood for over 100 years and developing "something else" that would garner the city more tax revenues was a worthy public purpose.

What has been done with the property since then?

-What an ignominious unwinding of the much maligned Kelo decision. New London may have simply tried to reach for the unreachable.

Potential dangers in drilling for gas

The Times Tribune

Ms. Howe Henneberg called eminent domain “evil words,” and she fears a pipeline running through her backyard if her neighbors sign natural gas drilling leases.

“It would be horrifying to me,” she said, adding she wants to buy the 13 acres adjacent to her 6-acre property.

Ms. Howe Henneberg was one of more than 300 residents from Pennsylvania, New York and New Jersey who attended the Damascus Citizens for Sustainability event Saturday night that featured a narrated slide show by Theo Colburn, Ph.D., the co-author of “Our Stolen Future.”

Though Dr. Colburn spoke to the crowd via phone from Colorado, her presence filled the Delaware Youth Center, her comments at times eliciting gasps from the attendees. She spoke about natural gas drilling in her state and stressed the need for full disclosure from drilling companies.

During the fracturing process, when natural gas is forced from the ground, “they’re using a number of chemicals with long names that many of you wouldn’t recognize,” she said.

A recent study of natural gas production on the western slope of Colorado, Dr. Colburn said, found 215 products with 278 chemicals were used.

Of those chemicals, 93 percent produced adverse health effects, while information on the remaining 7 percent was “proprietary” and therefore not available, she said.

Some of the chemicals used can cause irreversible “endocrine disruptions” before a child is born, Dr. Colburn said.

She can also foresee similarities between drilling in her area and the Northeast.

Anticipating the effects of natural gas drilling and spreading awareness are goals of the Damascus Citizens, a grass-roots group that formed in February.

-This article notes the potential dangers in drilling for gas. Safety is not an option it is required. Yet, drilling gas is something that is a nationally propounded policy, as illustrated by our tax regulations.

Runway Delayed

Detroit News

The board overseeing the Detroit Metropolitan Airport postponed a decision Thursday on a $3.6 billion, 20-year master plan that includes the construction of a controversial runway.

As they did at the first postponement, in March, people packed the Westin Hotel awaiting the decision. The Wayne County Airport Authority board said the postponement will allow it to work with community leaders. The members are expected to take up the issue again July 24.

Many residents oppose the master plan -- especially the proposed addition of a fifth parallel runway. The proposal also includes passenger monorail and terminal expansions. Romulus officials said the runway at Eureka and Middle Belt would decimate the community, displace as many as 3,500 residents -- about 15 percent of the population -- and wipe out $114 million in tax revenues.

The 10,000-foot runway would be necessary by 2020, airport officials countered. Airport spokesman Mike Conway said the master plan is simply a guide the airport needs to give to the Federal Aviation Administration.

-The Wayne County Airport Authority did the smart thing. It delayed a project open to public ridicule until there is some certainty in the factual basis for the necessity of the project.
The need for the project is less certain given the economic issues at hand in the United States, the uncertainty of continually increasing air travel due to gas and security issues, and the uncertain status of a Northwest merger.

Land Too Expensive

Journal Gazette

Sometimes land can be too expensive and time-consuming, forcing a road project around it.
Q. Why didn't the city/county buy or take by eminent domain the BP gas station that sits within the triangle of Getz Road, Covington Road and Jefferson Boulevard? - E-mail from Gerry, Fort Wayne.
A. Good question, Gerry, and one I assume several others have asked as they drive past this congested intersection, which has only become worse during the construction.
But the reason for not buying the gas station is a good one as well. According to Shan Gunawardena, the city's traffic engineer, at the time the plans for the project were being developed the owners of the BP station were not interested in selling.
Gunawardena said using eminent domain would have been costly and would have required environmental permits and mitigation work to remove the underground gasoline tanks and subsequent cleaning of the area. The project was designed to minimize the effect on this commercial area of the city, and so the city did not pursue buying the property. The work is set to be completed in November.

-Hail, Hail! We finally have a governmental agency that recognizes it should not buy what it cannot afford!

Prop 4- Revisited

Michigan Radio


ANN ARBOR (2006-11-02) One of the questions voters will be asked to decide on November 7th is a property rights measure called Proposal 4.

The constitutional amendment would put restrictions on governments' ability to condemn private property for redevelopment through the police power known as eminent domain.

The question stems, in large part, from a landmark Michigan case that allowed a neighborhood to be razed to make way for a General Motors plant.

In 1981, GM struck a deal with the mayors of Detroit and Hamtramck to build a brand-new assembly plant on the border between the two cities.

For Hamtramck, the idea of a new plant was a godsend. The city had lost a quarter of its tax revenues when the old Dodge Main plant closed two years earlier.

And Detroit stood to benefit from new, high-paying factory jobs at a time when few companies were investing in the city.

But first, Detroit would have to seize and demolish homes and businesses in an area that became known as Poletown.

Attorney Alan Ackerman represented some of Poletown's property owners. He says some people were happy to go. But he says other people felt that the government had no right to seize and demolish their property to make way for a private corporation.

"What it did," Ackerman says, "is it made sure people felt that they had no real right to their homeownership."

The Poletown case went to the state Supreme Court. In a landmark decision, the court ruled that governments could take land for economic development.

But two decades later, the court overturned that ruling. And now Proposal Four's aim is to enshrine that decision in the state Constitution.

Backers of the measure say the need for the amendment comes from yet another court decision: Last year, the U-S Supreme Court said governments can seize property for private development.

But the court also said it's up to each state to set its own rules.

Alan Ackerman says Proposal Four guarantees that the Michigan decision barring such property seizures stays in place.

"What we have is a situation in which people are worried there's going to be a reversal of that decision by some means," Ackerman says. "And they have such a fear that they want it in the constitution. And that protects them permanently."

But critics of the measure say in the zeal to protect property rights, Proposal Four would make it nearly impossible for communities to clean up blight through eminent domain.

Jerald Rosenfeld is with the JR Group - a firm that helps governments acquire property for redevelopment.

He says a provision of Proposal Four that would require property owners be paid 125 percent of the fair market value of their home or business would make even legitimate uses of eminent domain unreasonably expensive

"We're talking about the highway department," says Rosenfeld. "We're talking about an airport. We're talking about our road systems. They're gone. Those new developments, those new projects - they won't happen anymore, because the cost will be so great."

Backers of the measure dismiss that argument. They say it's important to remember that a home or neighborhood is worth more than what the market reflects.

And they say Poletown is a good example of that.

Marian Krzyzowski grew up near where GM's Poletown plant now sits.

He says the destruction of the Poletown neighborhood didn't just wipe out homes, schools, and churches. He says it also accelerated the decline of the area around it.

"Driving down the street, you can see there are mostly empty lots, boarded up storefronts, and mostly empty buildings," says Krzyzowski as he drives through the neighborhood south of the plant. It looks like it went through a war.

But the story north of the plant is a much different one.

Greg Kowalski was editor of the Hamtramck Citizen newspaper at the time the Poletown plant was built. He says the tax revenues from the plant rescued the city from financial ruin.

"And today Hamtramck is actually growing quite rapidly," says Kowalski. "Population is increasing. Housing values have gone up substantially, there's a lot of development going on in the city, and we are much better, sounder shape than we were back then."

Twenty-five years after Poletown was razed, voters will decide whether Proposal Four is the best way to make sure a similar situation doesn't happen again in Michigan - or whether it goes too far in preventing the redevelopment that some cities desperately need.

Border Takings

The Brownsville Herald

Before construction can begin on the border fence, the federal government must purchase a large stretch of South Texas land from private landowners.

But in Cameron County, the government's offers have been met with resistance from residents unwilling to sell their land.

For some, it's the principle. For others, it's the price.

This week, 16 permanent condemnation lawsuits were filed against Cameron County landowners. After more than 50 lawsuits were filed over temporary access to land in early 2008, these are the first cases that deal with permanent land seizures.

In almost all cases, the government is seeking to purchase land on which the fence will be erected. The lawsuits also request a permanent easement - usually a small fraction of an acre - which will serve as a byway for the U.S. Border Patrol.

"What they offered me is not even one tenth of what my land is worth," said Abraham Galonsky, who is being sued over his commercial property in Southmost. "The number is completely out of line."

Galonsky hopes that the U.S. District Judge Andrew S. Hanen will determine a more reasonable price for his 6.17 acres. No court date has been set for any of the 16 lawsuits.

Although the tracts in question range from .02 acres to more than six acres, the language of each lawsuit is nearly identical.

"You may present evidence as to the amount of compensation to be paid for the property acquired herein," each document reads.

In Galonsky's case, the government seeks a two-year lease, which would enable the construction of an office and a temporary storage area on his property.

"When they take away access and limit the land, they're doing damage to the land's value - that's what they're not considering in their offer."

Officials from the Department of Homeland Security have made it clear that once they've finished purchasing land along the border, the fence's construction could begin immediately thereafter.

-“Temporary takings” offer a number of diverse economic calculations in order determine Fair Market Value under the Federal standards. A two-year temporary taking may not simply be “rental value.”

Agency's Authority to Take Property

The Earth Times

California's 3rd District Court of Appeal issued two unanimous decisions supporting Pacific Gas and Electric Company regarding attempts by the South San Joaquin Irrigation District (SSJID) to enter the retail electric business by seizing the utility's assets.

The first decision rejects SSJID's plans to condemn PG&E's assets through eminent domain in order to provide retail electric service without authorization from the San Joaquin County Local Area Formation Commission (SJ LAFCo). The second rejects attempts by SSJID to depose two former SJ LAFCo commissioners and the commission's former executive director. The Court also ruled that the District is responsible for all court costs associated with the appeals for both PG&E and SJ LAFCo.

"This decision confirms that SSJID must abide by state law, and obtain LAFCo approval in order to enter into the retail electric business," said Nancy McFadden, PG&E senior vice president of public affairs. "This law exists for good reason: Before any special district can take over a service as important as a community's electric power, it ought to be able to make a good case, and prove the public benefit to the region, by winning approval at LAFCo. This decision preserves the checks and balances contained in state law."
PG&E has consistently maintained that SSJID needs approval by SJ LAFCo to enter into the retail electric business. The irrigation district effectively acknowledged the commission's authority by applying to SJ LAFCo in 2006 and actively participating in the commission's proceedings on its application. Only after the SJ LAFCo rejected the application did SSJID claim the commission's approval was merely permissive, not mandatory.

"The denial was on the merits," wrote Justice Fred K. Morrison. "If the District had a stronger case to make, reasonable diligence required the District to make that case at the (SJ LAFCo) hearing."

It is unfortunate for the residents of South San Joaquin County that its governmental water agency has frivolously squandered more than $8 million since 2006 and is committing more than $11.5 million more of public dollars to pursue an unsound business plan that has been denied by multiple regulatory and judicial bodies in which it has applied.
Should SSJID choose to reopen its application with SJ LAFCo, PG&E's position remains firm that the company's facilities are not for sale and that we will vigorously contest a hostile eminent domain takeover.

PG&E has served northern and central California for more than 100 years and is committed to providing clean, safe and reliable energy to our customers in South San Joaquin County. PG&E has provided millions of dollars in energy efficiency savings and innovative services such as ClimateSmart(TM), energy partnerships and solar generation incentives and rebates for local residents and businesses, including SSJID's water and irrigation facilities, to help reduce their energy bills and carbon footprint.

-It is amazing that governmental agencies do not understand their authority to take property comes from the legislature through a statutory delegation, rather than the local body.

Landfill Site

OnlineAthens, May 13, 2008

Oglethorpe County has given the owners of 79 acres on Dawson Road until June 9 to accept its offer to buy the land before it starts condemnation proceedings for the property needed to expand the Athens-Clarke Landfill.

Oglethorpe County officials agreed in March to pay landowner Anne Steiner $682,000 for the property, but the two parties have not signed an agreement.

The family has until June 9 to accept the offer or the government, which shares the landfill with Clarke County, will use eminent domain to seize the property, said Robert Johnson, chairman of the Oglethorpe County Commission.

"Hopefully, the land (deal) can be negotiated before then," Johnson said.

Kim Steiner, the daughter-in-law of land owner Anne Steiner, said in March that the family wasn't willing to sell the land but would have an independent appraiser determine its value. That appraisal was supposed to be completed by May 5, according to Johnson, but commissioners have not seen the report.

The landfill, which straddles the Clarke-Oglethorpe county line, has three to five years of space left, and the expansion would add about 25 to 30 years to its life, Johnson said.

Athens-Clarke County owns the landfill, but Oglethorpe County receives 10 percent of the tipping fees that haulers pay when they bring trash to the dump.

The state Environmental Protection Division still must approve a permit before the expansion.
In the meantime, local environmental activists have submitted petitions to Athens-Clarke and Oglethorpe county officials, asking them to reconsider their January votes to expand the site.
The decisions violate the 1992 agreement made between the two counties to close the site, rather than expand it, once it reached capacity.

"Such blatant disregard to uphold government integrity is an affront to the democratic process and constitutional protection of human rights," said Jill McElheney, an environmental activist.
State law says the agreement is not enforceable since commissions are prohibited from binding another, future commission made up of different members.

The agreement was based on the assumption that a regional landfill would be built, but that effort failed in 1998 after an outcry from residents living near 25 proposed sites. Athens-Clarke commissioners can't vote to reconsider the earlier decision since those votes only can be made in meetings that immediately follow the initial vote and before the adoption of the minutes, said Athens-Clarke County Commissioner Andy Herod.

People near landfills often have a difficult challenge when the governmental agency decides to expand the facility by involuntary (condemnation) purchase. What is seen is often much less than what is there!

Jury Stops Port Authority

Jacksonville Business Journal

The Jacksonville Port Authority probably will pass on acquiring 70 acres at the north end of Talleyrand Avenue by eminent domain, deterred by the $67.4 million price.

Having won a court ruling in December 2006 that the authority could take the property, it had not committed to doing so until the price was settled. Now it knows that price is more than four times what the authority offered before filing for condemnation.

A jury decided May 2 the authority would have to pay $67.4 million to fully compensate Keystone Coal Co. for its industrial riverfront property. The verdict followed a two-week valuation trial that was the culmination of a two-and-a-half-year process the authority had followed to acquire the land for expansion.

"It would be hard to justify purchasing the property for that amount," Authority Executive Director Rick Ferrin said. "I don't know of any maritime use that would generate a return on investment that would justify such a price."

This is eminent domain at its worst. The government attempts to take from one owner simply to transfer to a preferred developer from China! Only in America could a state rule allow dismissal of the taking because it was more than the buyer wanted to pay!

Nationalization of the Oil Companies

The Peoples Voice, April 25, 2008

We know what happens to people who stay in the middle of the road. They get run over.” - Ambrose Bierce

Are you sick and tired of being at the mercy of the grasping plutocrats who run Big Oil? Gasoline is now selling at $3.50 a gallon, as the price of a barrel of oil nears $120, with no end in sight to further increases. Meanwhile, the American economy is sinking faster than the Titanic. The dollar, too, is in sharp decline. Mortgage foreclosures are at depression era highs. Over three million middle class jobs have been exported in recent years. The Wall Street wise guys are in near-panic mode. The Fed, after 19 years of Alan Greenspan’s gross ineptness, is held in deep contempt. Yet, Big Oil keeps sucking off the American consumer, with a devil-be-damned attitude, while acting like a law unto itself… read more

Now if we can only nationalize everything, avoid all competition, then have nothing left for us to work for. Nationalization of the oil companies (a slight expense) would assure us of no development or improvements in the oil distribution system, and likely delay our attempts to look to alternative fuel.

Motor Speedway Project

The Indy Channel, April 20, 2008

Speedway is a step closer to making big changes near the Indianapolis Motor Speedway despite the efforts of some residents to derail the project.

Some people are upset that the Speed Zone development plan would force them off their properties.

"The unfortunate thing is that the plan that they have put together basically is a steamroller," said Danny Williams, owner of Pit Stop Liquor.
Supporters of Speed Zone said it would make the area around the speedway a more desirable destination.

"I think that the changes that we're proposing will revitalize this area," said Scott Harris, who is on the redevelopment commission.
The commission on Monday voted in favor of acquiring about 40 pieces of property to move forward with the project.

The commission will get appraisals on properties and begin negotiations with owners. If needed, officials said the town can use eminent domain to take the properties.

-Owners have built at section lines (mile roads) fully expecting a ninety degree\right angle at their property corner. Roundabouts give the historical expectation no respect. Owners get hurt, and their only recourse is Just Compensation because roundabouts are considered a public use.

Hospital Takings

www.springfieldnewssun.com, 03/28/2008

The City of Springfield has the right use eminent domain to acquire Robinson Insulation, Common Pleas Court Judge Richard Carey ruled Friday, March 28.

The property owners, Garth and Jennifer Robinson, had challenged the city's right to take their property, which would be razed to make room for Community Mercy Health Partner's new downtown hospital complex slated to open in 2012.

In his ruling, Carey assigned April 28 for a jury trial to determine the amount of compensation the Robinsons will receive for the property located on Baltimore Place, and Cliff, Plum and Cedar streets.
-There is always a challenge in the determination of what is a public use. Hospitals have frequently been non-profit or publicly owned. Therefore, when a taking for a hospital expansion is considered a public use it should not be considered a surprising result.

Construction at McGalliard Road

The Star Press, March 17, 2008

The state hopes to raise the bypass over McGalliard Road, building entrance and exit ramps, according to INDOT spokesman Harry Maginity.

In an unrelated development, INDOT also announced it would resume plans to build an overpass that would carry Centennial Avenue over the bypass. Centennial's intersection with the bypass was the site of a fatal accident in 2007, two fatal accidents in 2002 and several other accidents in recent years that left motorists with serious injuries.

Currently, the McGalliard-Bypass intersection is serviced by a four-way traffic signal.
INDOT spokesman Harry Maginity said the proposed interchange would be safer and better suited to the original purpose of having a bypass.

To complete such a project, the state would have to acquire additional right-of-way, displacing some property holders in the area, which includes several businesses.

Construction at McGalliard Road would begin in 2010 and cost around $22 million, according to the INDOT Web site.

-As States sell off infrastructure, from water works to toll roads, they now have funds to initiate other transportation improvements from other than road taxes.

Federal Power Line Plan

WASHINGTON (AP), March 6, 2008

New power line construction is more likely in the Mid-Atlantic States and the Southwest after the government on Thursday said it was pushing ahead with a plan to expand and modernize the electric grid in those areas.

The U.S. Department of Energy formally denied requests for a rehearing of a previous decision making it easier to build power lines in the designated areas, saying challenges by those who oppose new line construction were meritless.

The Energy Department has designated two "National Interest Electric Transmission Corridors" over the objections of many local and state officials.

The federal government's mid-Atlantic power corridor runs from Virginia and Washington, D.C., north to include most of Maryland, all of New Jersey and Delaware and large sections of New York, Ohio, Pennsylvania and West Virginia.

The Southwest corridor consists of seven counties in Southern California and three in Arizona.
In deciding to go forward with the two corridors, the department issued a statement Thursday saying the findings of energy congestion in the areas "are well-founded and based on data and studies."
In that event, a failure on transmission lines in Ohio set off a chain reaction that knocked the Canadian province of Ontario off the power grid, along with parts of New York, New Jersey, Connecticut, Michigan, Pennsylvania and Massachusetts.

If state authorities do not approve any construction after a year, the Federal Energy Regulatory Commission, or FERC, may intervene and approve a grid project if the new line is deemed necessary to satisfy national power needs. Such approvals could, in theory, include the use of eminent domain law to compel private owners to sell their property.

-The US government now views electric capacity as a federal rather than State issue. As such, it is strenuously pursuing a course of developing major corridors for future utility utilization of gas and electric transmission lines.

ITC Line: Genesee, Osceola, Hartland, Brighton, and Milford Townships

MPSC- Michigan Case No. U-14861, February 28, 2008

The MPSC issued an order denying a request by Hartland Township and several area homeowners for a rehearing in a case involving the construction of an overhead transmission line in Livingston and Oakland counties by ITC Transmission.

-An Opinion and Press Release, found under the MPSC filing, rejected the Hartland Township and owners’ challenge to the project. This is the final part of the proceeding with offers and the filing of the condemnation complaints for major transmission lines, which will destroy the aesthetic attractiveness to a number of communities in Livingston and Oakland Counties.

New Jersey Due Process

-New Jersey has a much-maligned rule that it can designate an area as blighted and ready for development. Under the rule, those individuals in the area must challenge within forty-five days or they forever waive their rights to challenge the condemnation. In Harrison, the City waited six years to designate specific properties. This raises substantial due process issues. To date, owners have been unsuccessful in their challenges to the New Jersey procedure, at least in State court.

DM&E Railroad

Rapid City Journal, February 13, 2008

The South Dakota Senate has approved a measure intended to speed up state hearings on the Dakota, Minnesota & Eastern Railroad's application to acquire land by condemnation for its $6 billion expansion project.

An opponent said the bill could hurt landowners who believe DM&E is not treating them fairly, but the Senate sent the measure to the House on a 20-13 vote.

The bill's main sponsor, Sen. Tom Hansen, R-Huron, said DM&E applied more than a year ago for state approval to use eminent domain to acquire land for a right of way from people who are unwilling to sell. Opponents have used delaying tactics to prevent a state hearing, he said.

"The time has come to let the process move forward," Hansen said.

"Their concern was not to stop the railroad. Their concern was to get a decent price for what the railroad was taking," Lintz said.

DM&E wants to rebuild 600 miles of existing track across South Dakota and Minnesota and add 260 miles of new track around the southern end of the Black Hills to reach coal fields in Wyoming. The Powder river Basin project would haul low-sulfur coal eastward to power plants.

The state Transportation Commission has sought to hold a hearing on DM&E's application for authority to use eminent domain, but that hearing has been delayed after some hearing examiners were removed by both sides. Another delay was caused by a court order that required the commission to pass new rules for handling such cases.

-This article describes the issues in the DM&E Railroad acquisition process.

Here, we have not only a national railway but also a railway owned by a foreign railroad company.

The issues of equal protection, state's rights, interstate commerce and the state's interest in protecting individual rights of its owners all provide a conflict, which has created torturous litigation and a hostile community in a question over what controls the state has on a transportation process within a state.

Atlantic Yards

The City of NY runs to its own clock. The use of mass transit creates an economy is which a central part of the transportation scheme is to have the most dense uses near the subway stops, with the heaviest uses, such as arenas and high rises near stations where possible. This is a basic part of the planning process in NY, DC, Boston and other communities with viable mass transit. Sorry Detroit, not quite a reason for condemnation.

Eminent Domain Sought For Ice House

The News Dispatch, January 19, 2008

MICHIGAN CITY - An obstacle in the city's plans to redevelop the North End could become moot soon after a lawsuit was filed to condemn two properties near Michigan Boulevard and Eighth Street.

Michigan City Redevelopment Commission Attorney Michael Bergerson said Friday he'd filed the suit last week in La Porte Superior Court 3.

The city wants condemned the Weber Sign property, 730 E. Eighth St., and property known as "the ice house," owned by Thomas and Florence Sobkowiak, 748 Michigan Blvd.

The city has tried for more than two years to purchase the properties - two of only three holdouts remaining in a string of properties needed for North End redevelopment.

Owners of Blocksom, a factory complex near Michigan Boulevard and Fifth Street, are in discussions with the city for an anticipated sale and relocation of the facility.

The Webers and Sobkowiaks, however, have refused to budge, as has the city. Bergerson's request for an eminent domain judgment, he said, is the last step in an arduous process.

The city is offering the Webers and Sobkowiaks $1 each for their properties. Bergerson said the offer is fair - in the eyes of the court - because the land under both properties is "highly contaminated."

"We can't pay for property that's also contaminated beyond its value," he said. "They can't sell it and they're living in a dream world if they think the taxpayers of Michigan City want to pay for a property and pay to clean it up."

Glenn Kuchel, the Hammond attorney representing Bill and Kathy Weber, the owners of Weber Sign, said Friday the offer of $1 isn't fair.

If condemnation is granted, an appraiser will settle on values for both properties and offer that amount to the owners. If the owners object to the price, the city will issue a deed and take the properties, but will still debate price with the owners.

-In reading the article and the claim of a “$1” value, one has to wonder whether the community fully understands the choices an owner has even with contaminated property. This is a court filing which was “rushed to judgment,” by the writer of the article, premised on comments of the community. Without question, the writer was not fairly notified of the owners' rights in this particular factual setting.

Belleville Development

Ann Arbor News, January 18, 2008

A major grocery store topped by a spacious public library is the centerpiece of a vision for downtown Belleville unveiled at a special meeting Wednesday.

At a joint meeting of the Belleville City Council and Downtown Development Authority started at City Hall, Rick Walker of Walker Developments, based in Montreal, said a national grocery store chain was interested in building downtown.

"(The grocery store) would be an economic boost and a reason for people to stop in Belleville,'' said Rosemary Loria, chairwoman of the DDA.

In addition to the grocery store, Walker Developments would build about 30,000 square feet of retail space on Main Street between Fifth Street and what is now Fourth Street. Housing and office space would be built above the retail.

The new construction would eliminate several buildings, including Chase Bank on the corner of Roys and Main streets. Loria said the bank would rebuild a smaller bank next to the new construction.

The DDA would buy the property for the municipal lots, but would not do so through eminent domain, Loria said. The DDA would have to borrow money for the parking lot projects. It already plans to borrow about $5.5 million for a major reconstruction of Main Street that is planned to start this summer and may have to borrow up to $5 million more for the parking and other aspects of the redevelopment project, Loria said.

-This is an example of what protections offered by the recent Michigan constitutional amendment were intended to do. That is to protect owners' rights to property and allow the market to determine value for property rather than the an uncertain court process forcing owners to accept a government offer.

Ramada Inn on Belmont

WYTV, January 16, 2008

Township officials say developers have already bought the land at the old Ramada Inn on Belmont Avenue for an unspecified project that may bring in major retailers.

Now all they need to get the deal through is this fifty foot strip of land, where developers want to put in a stop light. The only problem is the owners do not want to give up that piece of land, saying they're afraid the project might decrease the property value.

But township officials say the project is too important for Liberty to give up on. Pat Ungaro, Liberty Twp. Administrator says a compromise between the developer and the owner is close to being made, but if it's not worked out, the township is prepared to use eminent domain to push the project through.

-The safety needs of a community will outweigh the individual detriment to an owner. However, the future taking should not bar the owner from being fairly treated.

Water Company's Rights

An Aqua Indiana customer on Windsor Road, Steger bought a water softener and replaced a dishwasher and garbage disposal because of the harshness of his water, he said.

But the somewhat graphic description of his water’s color is the most telling.

“I would take showers and the water would turn the gray hairs on my chest red,” he said.

But people like Steger – who complain about the company’s water service – are becoming rarer, at least according to the number of complaints received by the private utility. In fact, complaints about water color, poor pressure and other service problems dropped by a third on average from 2004 through 2006, when compared with the previous three years.

One of the city’s main reasons to take over the private northern system was to provide better water.

The city started an eminent domain action in 2002 to acquire the northern system. Last summer, the Indiana Supreme Court ruled in a 3-2 vote that the city can take the utility through eminent domain. Aqua Indiana is challenging the city’s $16.9 million appraisal of its assets, but has not yet publicly offered what it believes is a fair price.

Steger, 68, bought his home on Windsor with the promise his home was on City Utilities. Upon discovering the water was from Aqua Indiana, he installed a water softener for $500, which he said was necessary to make the water potable. Even with the softener, he said the water still comes out red or black at times. He said he pays about $18 a month for salt for the softener.

Even if the cost of acquiring the private utility comes in more expensive for the city, Steger said he would be willing to pay a premium to relieve himself of the hassles.

“I don’t mind paying for a quality product,” he said.

-This article serves as a harsh repudiation of the water company’s fair rights. Given that the case is to be tried by a jury of peers in the community, when the community offers phone numbers to call for “complaints,” one wonders how fairly the water company can be treated in this situation.

Oceana Airport

Airport Business, December 27, 2007

Faced with the possibility of losing state money for land acquisition at the airport, the Oceana County Board has approved a resolution authorizing the acquisition by Eminent Domain if necessary.

A local consultant, in airport acquisitions, commented that cases usually settle through negotiation.

While airport development always sounds attractive, one has to wonder whether, on a purely cost and benefit basis, this project makes sense. There are a number of decent airports within a half hour drive.

Willets Point

Times Ledger, November 23, 2007

Former Borough President Claire Shulman continued her cross-borough tour in support of Mayor Michael Bloomberg's Willets Point redevelopment plan Monday night, telling the Queens Civic Congress she expects a legal battle to take place, but does not believe eminent domain will be used by the city.

The city's plan is expected to start the six-month-long public approval process as soon as February, and Shulman said a developer could be selected as early as next fall. The project remains fraught with obstacles, however, including the need for an extensive environmental cleanup, millions in infrastructure costs and, most pressingly, the 1,300 workers and 250 businesses which will need to be moved.

Shulman said the legitimate businesses at Willets Point deserve fair negotiations with the city, but stopped short of saying they deserve to stay on the 60-acre site.

She said she believes the city has firm legal standing and should not take eminent domain off the table, but does not think the controversial practice will be used when all is said and done.

"Eminent domain is a bottom line and I don't believe it will ever be used" she said. "But it's not in [the business owners'] best interest to wait for eminent domain."

-All too frequently, retired elected officials jump at the opportunity to promote eminent domain actions. Somehow, officials feel that their name becomes good when attached to a successful private taking project such as Willets Point. It is hard to imagine that the former president would know whether owners are better or worse off to await the condemnation.

Costs may outweigh the benefits

Tri Cities, November 27, 2007

BRISTOL, Va. – Despite a recent favorable court ruling, city leaders may opt to abandon the controversial Mendota Trail project.

The proposed hiking and biking trail from the city limits to the Scott County, Va., line has already cost the city more than $600,000, City Manager Bill Dennison said. The council is expected discuss the stalled project at its next meeting.

"An item is on the agenda for Tuesday’s meeting," Dennison said. "It’s a terribly convoluted, complicated, very expensive proposition. Continuing a project, with no end to the expenses in sight, doesn’t seem very prudent to me."

In the nearly seven years since, the city has invested about $635,000 to acquire the land and in legal and engineering fees, amid a six-year legal battle with property owners along the proposed route.

After a number of landowners tried to claim ownership in 2001, the city sued all 180 people with potential claims. Less than 20 are still engaged in the lawsuit, which has not yet gone to trial.

One solution could involve asking the Washington County Board of Supervisors to condemn the property, Mayor Jim Rector said, adding he didn’t know if county leaders would cooperate.

Any decision also needs to include an estimate of the cost of completing the trail, Rector said.

"A half-million dollars will not touch what needs to be done to that trail and that doesn’t include annual maintenance," Dennison said.

The city previously estimated trail construction could cost up to $1 million.

Establishing a trail would involve clearing the land, removing buildings, fences and other obstructions, building bridges, replacing at least one trestle damaged by fire and pouring the base material, Dennison said.

-Sometimes, communities realize in time that they should withdraw from projects rather than obstinately pressing forward without a full analysis of the costs and benefits. Substantial title problems on ownership of property and uncertain expenses can lead to unanticipated obstacles.

Blue Water Bridge Expansion: What you really need to know

thetimesherald.com, November 20,2007

Mike Connell recently posed a Q and A in his article to address, in his opinion, possible issues with the Blue Water Bridge expansion. However some of the questions and answers are flawed. For example, Mr. Connell quotes the MDOT as stating that owners are better off selling the property because they obtain 125% of their own value. The problem is that the offer may be far less than 100% of the value. The 125% applies to the total amount paid, whether by settlement or trial or a simple deed. Mr. Connell forgets the rights of individual owners can be protected.

The intent of the article is to show that the government will take the property, and the owners have no rights to challenge the amounts.  Further it appears from the article owners should simply succumb to the governmental desires.  This is simply wrong!

There is no question about public use for the International Bridge, nor is there a question that we must secure our borders. However, there is still the requirement of "just compensation" in both the Michigan and United States Constitution.

What to do when facing Eminent Domain

The Monroe News recently published a very informative article on what to do when you are faced with eminent domain.

If you're approached by an oil company, gas company, or any other utility, eminent domain attorney Alan Ackerman says there are a few things you can do to ensure you're treated fairly.

Mr. Ackerman first suggested retaining a lawyer or at least consulting with one throughout the process. In most cases, he said, the entity attempting to obtain land or get easements will be responsible for homeowners' legal fees under Michigan law.

However, those who shy from attorneys also have options:

• Keep quiet, get the offer in writing and figure out what the basis for the offer is. Keeping quiet at this stage is important, said Mr. Ackerman, since whatever you say can be used later.

• Figure out exactly where the pipeline, wires, etc., are being installed. How will this affect the property next year? In 20 years? Does it destroy the farm tiles?

• Make sure you know what your local government mandates.

• Get everything in writing, make sure you can understand it and make sure it's specific. Do not sign anything until you have read it thoroughly and understand it.

• Keep the property well maintained.

• Keep in mind the people who come to negotiate the use of your property are professionals at this.

• Get an independent assessment.

• Get exact definitions.

• Beware of the tactics.

Land Taken for Road

Washington Post, November 23, 2007

Maryland highway officials and the philanthropic Eugene B. Casey Foundation are battling in court over the state's decision to seize 405 acres of the foundation's land for the intercounty connector, even though the land is seven miles from the highway's planned route.

The state has taken the wooded, rolling hills in Boyds, and has offered to pay the foundation $3.44 million, to replace some of the parkland and mature forests that will be bulldozed to build the six-lane toll highway between Gaithersburg and Laurel. The Montgomery County parcel is part of the Maryland State Highway Administration's "environmental mitigation" plan, which received federal approval.

Environmentalists say the Casey land is too far away to help the wildlife in the more than 900 acres of forests, wetlands and parkland that the 18.8-mile highway will destroy. The bigger issue: The foundation, its attorney said, doesn't want to sell and thinks the state has no right to the property.

The Casey Foundation is one of the Washington area's largest philanthropic organizations, with a net worth of $166 million, according to its 2005 federal tax filing. Eugene B. Casey, who died in 1986, was a developer and one of upper Montgomery's largest land owners. Betty B. Casey, 80, his widow, lives in Potomac, according to voter records.

The state took ownership of the foundation's property in May, after the trustees declined to negotiate a fair market price, said Melinda Peters, the intercounty connector's project director. Upon seizing the land, the state deposited its purchase offer of $3.44 million with the Montgomery Circuit Court and filed a condemnation case against Betty Casey and other trustees. A judge is expected to rule in spring on whether the state has the right to seize the land.

If the state wins the court case, the land would be turned over to the county's park system. But, Park said, the foundation might then appeal because Maryland has no case law on the state's rights to seize land far outside a project's right of way.

Full construction on the highway began last week, after a federal judge in Greenbelt rejected two lawsuits that alleged that the project violates federal environmental laws. The intercounty connector, estimated to cost $2.4 billion, is scheduled to fully open by 2012.

A ruling on the extent of the state's eminent domain powers could have far-reaching ramifications. Such "environmental mitigation" packages to replace wetlands, forests and other habitat have become commonplace, particularly on large, controversial projects.

However, as development grows denser near projects, highway officials said, they have had to find replacement land farther away. As part of rebuilding the Woodrow Wilson Bridge, for example, regional highway officials created or preserved 100 acres of wetlands in Stafford County and planted river grasses at the mouth of the Chesapeake Bay to replace those lost to the larger bridge.

-This article deals with the issue of true intent in a taking by an acquiring agency.  Is the intent of the acquiring agency to find the easiest way out of a required mitigation project?  The acquiring agency may totally fail to repair the harm of a project or simply mitigate this situation by replacing the acquisition with something available elsewhere.  It is possible the statute, requiring mitigation for forestland taken for a roadway project, has no relationship to the project area affected. 


Be Cautious Before Signing Leases

Weekly Almanac, Editorial

Some Wayne County landowners, particularly in the northern part of the county, have the opportunity to make royalties off their land by singing leases with natural gas companies that have been looking to acquire drilling rights here. Residents have been advised to find out as much as possible about the process before signing anything.

The companies’ interests will take precedence over the interests of the landowners.

Landowners were advised to join together, pool their acreage and hire a lawyer or agent to negotiate for them as a group.

-This editorial is one of the brightest and well written editorials that could be provided to the owners. The editorial realistically advises owners that they should look to what rights they have and pool their acreage. In most States, there is a State statute which allows pooling, thereby allowing the individual owners to maximize their values.  This will likely result in the highest possible royalty percentage.

EnCap Investigation

North Jersey, October 23, 2007

North Arlington officials on Monday called for a federal investigation into the "entire sorry episode" of the controversial EnCap proposal to build a massive golf course-residential-retail complex in three Bergen County communities.

The report, based on a review of 10,000 pages of state documents, showed that the project has added to the pollution in the Meadowlands -- revealing, for example, that 2.5 million cubic yards of contaminated materials have been brought to the site in Rutherford and Lyndhurst.

The project plans for Lyndhurst and Rutherford call for two golf courses, a hotel and 2,500 residences, all built atop the four old landfills there.

After The Record reported details about the $300 million in publicly funded financing for the project, Governor Corzine directed the state inspector general to investigate the deal. That review is still under way.

-No State is feeling the punishment of the private/public relationship more than New Jersey. Here EnCap is apparently accused of buying its way into deals with local government. Due to this, nothing is being developed, trust in the government is being destroyed, and one wonders whether government can ever treat private owners fairly.

Algonquin Gas Transmission, Intent to Prepare an EIS

Trading Markets, October 24, 2007

The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental impact statement (EIS) that will identify and address the environmental impacts that could result from the construction and operation of the East to West HubLine Expansion Project (E2W Project or Project). The E2W Project is proposed by Algonquin Gas Transmission, LLC (Algonquin), which is an indirect wholly owned subsidiary of Spectra Energy Corp. The Commission will use the EIS in its decision-making process to determine whether or not to authorize the Project. This notice describes the proposed Project facilities and explains the scoping process that will be used to gather input from the public and interested agencies on the Project. Your input will help determine the issues that need to be evaluated in the EIS.

Summary of the Proposed Project
Algonquin proposes to modify portions of its existing pipeline system in Massachusetts, Rhode Island, Connecticut, New York, and New Jersey. The E2W Project consists of the construction and operation of 46.1 miles of various diameter pipeline and associated ancillary pipeline facilities. Of this total, 13.0 miles consist of new pipeline in Massachusetts and 33.1 miles consist of the replacement of existing pipeline in Massachusetts and Connecticut. A significant portion of the 46.1 miles of the proposed pipeline facilities would be either within the existing Algonquin right-of-way or adjacent to an existing powerline right-of-way. No new right-of-way corridors would be created based on the alignment as currently proposed with the exception of several minor alignment deviations to facilitate construction.

In addition, Algonquin proposes to construct 2 new compressor stations in Massachusetts, install over-pressure protection regulation at 4 sites in Massachusetts, and install minor modifications at 5 existing compressor stations and 29 existing meter stations along Algonquin's system in the 5 Project states as described below. A general overview of the major Project facilities is shown in Appendix 1. /2/

-A major gas pipeline will be installed in new areas, as well as along old pipelines, in New York, New Jersey, Connecticut, Rhode Island and Massachusetts. The project is a major facility expansion traversing hundreds of miles. This will be a closely followed and much debated project affecting numerous landowners.

Marthon Pipeline Construction

UPDATE:  Right of way agencies are once again contacting owners.

Detroit News, September 19, 2007

City Council members grilled officials from Marathon Petroleum on Tuesday over the environmental impact of its $1.5 billion refinery expansion proposal and put pressure on the company to commit to hiring more Detroiters and minorities.

The project, which could bring up to 1,200 construction jobs and close to $9 million a year in taxes as well as increase gasoline supplies.

But some residents and environmental groups fear it would increase air pollution and say their southwest Detroit neighborhood is already overburdened with industry.

Company officials said they are committed to hiring Detroiters. They have scheduled job fairs and have set aside money for technical training and scholarships. The project will generate 135 permanent refinery jobs.

"The focus clearly is on Detroit residents," said Angelia Graves, a company spokeswoman.

-Marathon is still working to establish a plan, allowing for more temporary construction jobs and a number of permanent jobs. There is much to face in both the acquisition as well as construction process.

Farmers Not Looking to Sell

YouNewsTV, October 17, 2007

A local landfill has agreed to pay for a much needed sewer treatment plant near Wyatt. In exchange, the landfill could purchase land from farmers without rezoning.

Waste Management has offered to pay for the $1.5 million plant, but in return, it wants an overlay district created around the Prairie View Landfill.

After criticism, St. Joseph County proposed smaller district.

The plan has undergone a few changes. But the biggest change is a contract is a contract that will require Waste Management to pay property owners for fair market value if an

Waste Management anticipates the landfill will need to expand in another 25 years. Some farmers who live next door to the landfill do not want to sell.

-Forcing farmers to lose the right and benefit of owning a farm with potential for other development in the future because of proximity to the waste site does not fulfill the basic requirement of full compensation clauses of either the Indiana or Michigan Constitutions.

County Purchases Another Utility

Shorelines, October 11, 2007

St. Johns County Utility is ready to finalize a deal to buy intercoastal Utilities. Some people still think the price is too high.

Appraised at $24.5 million, the aging water and sewer system serves about 4,500 residents in Ponte Vedra Beach and Palm Valley.

At a Palm Valley Community Association, meeting residents complained the appraised value is too high.

Whether or not no the county acquires the utility, it will have to pay the company’s legal fees for the past year.

-Many governmental agencies are attempting to take water and other utilities when they fear there is an environmental issue, a safety constraint, or inability to develop in an appropriate fashion in the future. However, this community should not think that their rates will go down simply because the utility is being purchased by the County.

Clarksville May Condemn Peddler's Property

News and Tribune, October 4, 2007

The town of Clarksville says it may condemn a portion of the Peddler's Mall property in order to pursue a revitalization project on Easter Boulevard.

The condemnation being discussed would not affect the building but would lay claim to about 25 feet of road frontage.

The plan is to add new lanes, landscaping and sidewalks.  

- One of the things apparent in Clarksville is that the owners do not necessarily have to respond to the government.  Owners have no obligation other than to provide the condemning agency with materials which may serve as the basis for valuation.  

Crude-Oil Pipeline: Pontiac to Patoka

Pantagraph, October 1, 2007

LeRoy attorney and political activist is recruiting clients to fight an eminent-domain request to build a crude-oil pipeline from Pontiac to Patoka in Southern Illinois.

Millions of dollars in payments to landowners hang in the outcome of Enbridge Inc’s request from eminent domain.

Enbridge spokesperson has repeatedly said eminent domain is a last resort.


-It is good to see an activist fight the condemnation process. However, each landowner should protect their individual interest on the damage claims. The same attorney can do this, but each owner should look to the individual claim that they may present. Otherwise, they may find themselves in front of a group of special masters who have no understanding of the issues at hand and face the possibility of no just compensation.


The Value of a Mile

Columus Dispatch, September 29, 2007

When Canal Winchester offered Richard "Pete" Stebelton $9,249 for a 1-mile strip of his property, Stebelton thought the payment was too low.

This month, a Franklin County Common Pleas jury decided the village should pay the farmer and used-car dealer $595,625. 

Canal Winchester wants the land to link a bike path between Rager Road and the village swimming pool. It used eminent domain to take a strip of Stebelton's 80-acre property and hired an appraiser who determined that the $9,249 would be enough compensation.

Stebelton was the only one of eight property owners who didn't agree to sell his land to the village for the path. Instead, he went to court to challenge the village's valuation.

The jury decided Sept. 20 that the land the village wants, along the northern edge of his property, is worth $37,000. But the jury also decided that by taking it, the village was closing off a back entrance to the property and damaging the value of the rest of Stebelton's land by $558,625.

-In many jurisdictions, even after the jury=s verdict, the condemning authority can withdraw from a condemnation.  This offers great risk to owners who may face a second condemnation, with not as decent results.

In this situation, it looks like Mr. Stebelton had the opportunity to face a community which may walk away, but at least pay his fees.  The process can be maddening indeed!


Detroit Heavy Oil Upgrade Project

Monroe News, September 22, 2007

The old real estate maxim is proving itself once again - this time when it comes to installing an oil pipeline.


Although some property owners don't want any kind of expanded oil pipeline running through their yards, others are okay with it - sort of.

For Gary Doubler, location has been the sticking point in his negotiations with Marathon Petroleum on behalf of his in-laws' farmland in Frenchtown along N. Custer and Raisinville Rds.

The project is being referred to as the Detroit Heavy Oil Upgrade Project (DHOUP) and would run from Samaria up to Detroit.

At this point, the project is proposed; no definitive plans have been secured. The new line would follow an existing line about 70 percent of the time. The other 30 percent of the time, it would run near the existing line but has had to be rerouted in places because of easement requirements.

The new line would be a wider (24-inch) pipe that would allow more viscous Canadian crude to flow.

Chris Fox, spokesperson for Marathon Oil on the DHOUP project, said the company has been in communication with all of the property owners along the route and has been working to secure the easements since last summer.

Deborah Brown, who owns land in Frenchtown, said the money Marathon was offering was laughable.

Ms. Fox said the company still is committed to working openly with people.


-The real problem is the pipeline right of way agents are negotiating either knowingly or negligently proceeding. This is becuase there is a very specific legal process in Michigan which requires that an appraisal or statement of value be provided to an owner prior to negotiation and purchase. The oil company agents are violating a condemnation procedure intended to protect owner’s whose properties may be take for public use in this State! I understand the process may be different in Oklahoma, but that does not mean the lack of knowledge of our fair procedure should bar owners of their rights.

Detroit News Opinion

Detroit News, September 18, 2007

Hartland Township residents have enlisted state legislators in their battle against a plan to build overhead electric transmission lines through the county, but that's not an appropriate way to deal with the issue.

Officials in the Livingston County community and some residents have been protesting a state-approved plan for more than a year that allows ITC Transmission to install 95-foot tall power poles for the delivery of electricity to the growing area.

It is not, however, the state Legislature's job to micromanage the affairs of local communities or the companies that provide power and other services to meet their needs. That rests with the MPSC, which has already approved the project.

ITC addressed the issues and followed a MPSC request to change the route, which will add an estimated $2.2 million to the project. If forced to bury the lines, project costs will increase anywhere from $15 million to $40 million, ITC officials say. Those costs will be passed on to consumers.

-The author of this blog frequently agrees with the Detroit News Opinion page on land use. However, this time around, one is bound to disagree.

One of the few outlets we have to respond to land acquisitions is to seek relief via the legislative process. We should not be upset if the owners in this area are successful. The alternative would be no opportunity to respond to the actions taken by franchises granted by the government!

Marathon Pipeline Slows

Detroit News, September 4, 2007

Marathon cleared a hurdle this morning toward a proposed $1 billion expansion of its Detroit refinery.

The expansion would add 135 jobs at the refinery and increase gasoline supplies in Michigan.  The project would also create 1200 construction jobs.

Several city council members have said they have serious questions about the project's impact on the neighborhood.

-Apparently Marathon has slowed down its acquisition attempts in Monroe and Wayne Counties. Marathon is awaiting a final determination of which community will obtain the pipeline.

There are concerns about the negative impact on the neighborhood of the refinery. However, the station vis a vis the community and the brownfield cleanup may offset these concerns.

One thing is for certain, with a billion dollar proposed expansion, even if only a half tax occurs, an economic boom will occur in the local area.

The eminent domain proceeding, consisting of the condemnation necessary for the pipeline, would shift into high gear.

$17 Million to Relocate and Vacate

Long Beach Press Telegram, August 17, 2007

Then city of San Pedro will pay a petroleum storage company $17 million to vacate 12 acres of waterfront property in the Port of Los Angeles.

The settlement comes after five years of negotiations in which the port threatened to condemn the property over various environmental and safety issues.
Clean up, which may take several years, is organized by the city and the port.

-As in so many other communities, San Pedro has determined that the burden of cleanup costs and just compensation far outweigh the value to the community of an industrial use in an area attempting to de-industrialize. This is of major public policy import because there will soon be a day which there simply is not enough land to maintain industrial uses. Further, the environmentally sensitive uses being placed by gasoline type companies will inevitably change to higher and better uses such as high-rise residential, commercial development and intensively used port facilities.


Ridge Water District Looking to Acquire Neighbors

Chico Enterprise, August 18, 2007

Paradise Irrigation District has been in talks about collaborating with its neighbor, Del Oro Water Co., to chare water from a proposed pipeline.

PID officials announced they are looking at an alternative. They would like to acquire Del Oro’s two districts covering Lime Saddle and Old Magalia.

Del Oro maintains its districts are not for sale.

If PID presses ahead with the acquisition process, it will have to seek approval from the Butte County Local Agency.

-The article is a classic example of the desire to obtain a new “economy of scale” in purchasing franchises, thereby expanding the business viability and opportunity. As part of this taking, the proposed acquirer would best review its statutory authority. See Grosse Ile Township v. Grosse Ile Bridge Company, 727 Mich. 593 (2007).

Wilmington Riverfront Fight

Delaware Online, August 23, 2007

Business owners in Wilmington are fighting the city’s plan to take their property using eminent domain.

Wilmington officials want to redevelop the riverfront, a plan 35 years in the making.

The city promised local business owner Ed Osborne and others fair market value and to relocate them to a business park near Garasches Lane.

-Clearly, communities need to redevelop blighted areas. The problem in Wilmington is that its citizens who are reasonable and responsible businessmen owning property in an area which is at least partially blighted. Then, the owners face the massive majority, such as that expressed in the Delaware Online article of the News Journal, in which it seems that the whole notion that there is nothing unfair in the process runs contrary to reality.

In the article, one of the questions raised was whether the owners were protected from abuse of authority.  The only answer is "no," they are not fully protected. The courts will hold that the government has the right to take the property unless there is a clear abuse of discretion in the governmental activity. This action is unlikely to be found in a situation where a major portion of the area is blighted. At the same time, the notion that owners will be protected just does not meet with the reality in which owners do not get paid for business interruption and other damages. Lost profits will be difficult to obtain, and the value of the businesses may not necessarily be paid.

McLean, Livingston, DeWitt County Pipeline

Pantagraph, August 20, 2007

A Canadian crude oil transporter requested eminent domain to construct a pipeline through McLean, Livingston and DeWitt counties.

The eminent domain power is sought only in the interest of efficiency and to meet public need for crude petroleum.

Enbridge wants to construct a 170 mile pipeline east of Bloomington from Pontiac to Patoka. Construction is slated to start in 2008.

-The pipeline going through Indiana is also going through Illinois. Property owners are challenging the taking at the Illinois Commerce Commission. It is unlikely that the local Commerce Commission would rule against a pipeline, especially in the present day context that the pipelines are federal activities and the challenge would therefore be made at the federal level. The pipeline company will aggressively take on the farmers, so the farmers and other owners challenging the estimate of just compensation is incorrect at a future date.

LaPorte County Airport

Post-Tribune, August 5, 2007

Northwest Indiana is a prime piece of the national shipping puzzle.

A 3,000 acre parcel in LaPorte County is the potential site future site for a huge transportation hub.  The site is close to nearly all major interstates in Northwest Indiana.  

If the property owners of the tract do not respond soon to offers, eminent domain maybe used to kick them off their property.  Governments have the power to force private property owners to sell their land for the public use or for private use where there's a substantial public benefit.

-The location is a prime example of the highest and best use assembled by the government.  There is a reasonable argument that maintains that the government is the only source to assemble, but there is also an argument that part of the special value of the location should be for the benefit of the owners.

Atlanic Yards

Brooklyn Daily Eagle, August 3,2007

Plaintiffs are challenging the use of eminent domain to build the planned Atlantic Yards Project.

Plaintiffs are property owners and rent subsidized tenants located in the footprint of the planned 22-acre development project.

Under the Fifth Amendment to the US Constitution, "private property shall not be taken for public use, with just compensation."

-The Atlantic Yards case is a difficult case and will have little opportunity for success given the presence of Kelo precedent.  However, it may be in the United States Supreme Court where we visit the issue.  If the Supreme Court does reverse the Kelo decision, it will only be due to misuse and abuse of the power by local communities that put us all in this horrible position.

Airport Taking- What is highest and best use?

Frederick News Post, August 2, 2007

The city of Frederick is pursuing the use of condemnation of a local farm so it can expand the airport.  

The city council voted unanimously to take the farm property.

According to city documents the farm has been appraised for $2.8 million.

The city council believes firmly that it is the right step to take the property.

-This article presents an underlying theme in condemning authorities that simply if you assess, especially a low assessment, that is the fair market value for the property.

Airport takings frequently offer issues of what is the correct highest and best use for the property.

Michigan Citizens for Water Conservation v. Nestlé Waters of America, Inc, 479 Mich. ----; --- NW2d ----

Michigan Citizens for Water Conservation v. Nestle Waters of America, Inc, 479 Mich. ----; --- NW2d ---- , is a case in which both the majority and dissent have arrived at a logical decision making approach premised upon the underlying public policy that legislation is to be read purely for and restricted to its writing versus the legislative intent. What needs to be done for this legislation to be read in the broader sense than environmental policies are to be protected and all of the public has the right to such protection is that legislation should simply state that. All that is needed is something along the lines of: "Individuals have a right to seek relief under this Act", then the issue would be moot. However, even without such language, one can read the present legislation as contemplating individuals, even those indirectly affected, have a right to seek the environmental protections of the Act.

Landing Fees

NWI.com, July 13, 2007

The Gary/Chicago International Airport approved making a $1.6 million court deposit to secure a key stretch of land west of the main runway.  

The deposit is part of condemnation proceedings the airport initiated last year.

The authority board also approved paying the moving costs of a business located there and clean up costs. 

-Gary/Chicago International Airport will be a key foundation of redevelopment in the area. However, this is not to be a building block for one to the detriment of only the owners. Airport acquisitions are always specific and far more complicated than what first meets the eye. 

School Condemnation

Leesburg Today, July 16, 2007

Loudon County Public Schools staff and representatives of two adjoining Dulles area properties continue to butt heads over how to proceed with land acquisition.  

The landowners contend no negotiations had taken place and the school system was rushing to begin a condemnation process. 

-School Board takings seem like simple public acquisitions.

However, properties taken for schools are variably in areas of growth, where a noteworthy demand in a community is simply missed by appraisers. In many communities, School Boards will not acquire by the eminent domain process, but rather simply buy what is available in the marketplace, thereby avoiding the hostilities and uncertainties of eminent domain proceedings.

Water Fight

News Essential, June 2007

Fort Wayne is now free to take over the Aqua Indiana water utility's northern operation.   It will probably spend more than $1 million plus already invested in legal fees for a bad use of eminent domain - taking over a business that is working perfectly well in private hands.  

The Indiana Supreme Court has affirmed the original court's decision in favor of the city, relying on the "indeterminate permit" language giving authority to "a municipality like the city to purchase its property."  And the utility does not have the authority to designate a particular condemnation procedure.

-This article attacks the basic judicial premise that individuals and corporate entities have a right to make a profit without fear of acquisition by a condemnor. However, State Supreme Courts have consistently held that when a legislature grants a local agency the authority to purchase a franchise, the local government will generally be allowed to acquire. A similar example occurred in the Township of Grosse Ile v. Grosse Ile Bridge Company action of Township of Grosse Ile v. Grosse Ile Bridge Company, Supreme Court No. 131185, Court of Appeals No. 255759.

It is incomprehensible that such deference is given to legislative bodies at the local level where a statutes allow challenges for lack of necessity. Yet, courts have consistently construed the challenge to necessity being one of whether the end use is or is not a public purpose.

Airport Condemnation

NWA Online, June 21, 2007

Airport commissioners recommended Tuesday the City Council begin condemnation proceedings against a property owner near the Springdale Municipal Airport. 

Buying the land will allow the airport to clear trees on the property that are both an obstruction to aircraft and a hazard because of the birds they gather.

-There is a great advantage to property ownership near an airport. The proximity to air traffic and a decent road system may dramatically increase the value of the property. However, when one is near an airport, one suffers the grave risk of being taken by the next airport expansion.

Power Line Opponents

Times Community.com, May 16, 2007

Opponents of Dominion Virginia Power's plan to string transmission lines across the Piedmont's placid and historic landscape circled their wagons around Washington, D.C. Tuesday.

They provided federal regulators with impassioned narratives about how their lives would be impacted by the 500-kv power lines and the huge towers that would hold them.

"I've been promised by the experts at Dominion Power that my land is a target for the 15-story power lines they propose to build," said Judy Almquist of Marshall, a retired widow who supports herself by renting out the six houses and apartments on her 50-acre farm in Fauquier County. "Two local realtors told me that my property is worthless right now because no one will buy it."  Read Full Article

- For the opponents that circle the wagons, in all likelihood their activities will be pre-empted by the federal legislation passed during the first Bush Administration.  


For more than 50 years, the Ackerman name has been synonymous with integrity and excellence in eminent domain litigation. The firm has helped hundreds of clients, large and small, urban and rural, collect hundreds of millions of dollars in fair compensation from settlements, mediation and jury verdicts.

It takes major parcels of land to build a new highway, hospital, or similar public project. Unfortunately, the greater good to society from such large-scale development often exacts a personal toll: an owner must relocate a well-established business; or a family learns that its property, owned for several generations, lies in the project's path. To be forcibly uprooted or to give up personal property never easy.

Beyond sentiment, moreover, come questions of due process and value: how do you protect your legal rights when your property is condemned; and what is a fair price for your property?

In the early 1940s, Ackerman Ackerman & Dynkowski's founder, Irving Ackerman, helped establish the legal specialty of condemnation law, finding new ways for property owners and business clients to obtain fair compensation. The firm quickly gained a keen understanding of the legal and human dimensions behind this complex area of the law and continues to apply that understanding today. That is why Ackerman Ackerman & Dynkowski stands as a persistent and respected adversary of government legal departments across the United States. We pride ourselves on listening carefully, diligently doing our homework and aggressively fighting for the property rights of individuals.