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

Chicago Tribune

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

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

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

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

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

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Post Trib

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

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

School district attorney Ragen Hatcher was less diplomatic.

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

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

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

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

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StlToday.com

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

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

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

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

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

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

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

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

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Texas Lawyer

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

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

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

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

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

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

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

As noted in the dissent, shifts in the vegetation line do not create new easements but instead "they expand the size and reach of that one dynamic easement."

Wiener also wrote in his dissenting opinion that Severance lacks standing to bring her Fourth Amendment seizure claim. According to the dissent, the U.S. Supreme Court's 1984 decision in United States v. Jacobsen defined a "seizure" for purposes of a Fourth Amendment claim as a "meaningful interference with an individual's possessory interests in his property." The owner of the properties at the time the public's easement attached held the "right to exclude" the public from the dry beach portions of the property, but Severance has never had that right, Wiener wrote.

In his dissent, Wiener also took issue with what he perceives are the objectives of Severance and the Pacific Legal Foundation (PLF) in bringing the suit, which he calls a "quixotic adventure."

Public beach cases divide state judiciaries. Nothing created greater controversy in the Michigan Supreme Court opinions than where one could walk in the "water." This has a state law underpinning, yet property rights under the navigable water rules.

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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.

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Right Side News

As discussed in Fallout from the Energy Policy Act of 2005, Pt 1, the United States federal government is taking a more and more integral role in the distribution and transmission of electricity and in the energy sector throughout the U.S. And such is the result of both federal regulations and laws mandating the deregulation of public utilities as well as the repeal of the Public Utilities Holding Company Act (PUHCA) of 1935, as mandated in the Energy Policy Act of 2005 (EPAct 2005). It will prove to have profound impacts on the future of not only the fiscal health of public utilities but the oversight of their maintenance and the future construction of transmission lines.

This continuing report, on the exploration of EPAct 2005, will focus upon a section of the law which has not been clearly articulated for the American people by either the Department of Energy (DOE) or members of either the U.S. House of Representatives or the U.S. Senate. Yet, this complex and important body of law represents but an ad hoc and unilateral takeover of not only the direction of energy policy but the very delivery system which Americans rely upon in order to live. …

…And to add insult to injury, Section 216(e) of EPAct 2005 on Rights-of-Way, "If a permit holder cannot obtain the necessary rights-of-way for the project, the permit holder can acquire the rights-of-way through an eminent domain proceeding in the federal district court where the property is located." And furthermore, in Section 216(f), "A right-of-way acquired in an eminent domain proceeding is a taking of private property for which the landowner must receive just compensation, which is the fair market value on the date of exercise of eminent domain."

Therefore, any fluctuation or rise in real estate property values during the course of the proceeding and including any period of time due to litigation arising from such a proceeding to the time of completion of the project, if finally approved, would not be taken into consideration. And the compensation or fair market value of the property to its owner would be locked in by the date of the initial date of the proceeding, which could potentially be years, as in the case of Kelo v. City of New London, CT 545 U.S. 469 (2005).

This is an interesting contrarian review of the now omnipresent energy policy, which will control transmission activity for years to come.

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Twincities.com

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

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

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

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

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

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

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

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Star Tribune

In a case that sparked intense turmoil and contributed to the ouster of a long-time mayor, the Minnesota Court of Appeals has ruled that the city of Jordan may not carve into the grounds of a historic Catholic church in order to widen roads for future growth.

Unanimously overturning the opinion of Scott County District Judge Michael Fahey, the appeals court said Tuesday that state law prohibits cities from seizing the property of religious groups without their consent when it seeks to widen streets or roads.

The controversy carried huge symbolic weight for many in Jordan worried that Scott County's hypergrowth was ripping into the fabric of a historic downtown.

"Widening a road so close to an important historic structure is the heart and soul of the case," said Larry Martin, the church's attorney.

The city council may decide as soon as today whether to seek to take the case to the Minnesota Supreme Court.

"Right now we're praying for the city and praying for a peaceful resolution," said Pam Beckius, business administrator for St. John the Baptist Catholic Church, at the edge of downtown.

The case did present the courts with a twist they hadn't quite seen before, Martin said. It's clear that Jordan couldn't have forced the church to give up land for a street, as such. But it was not so clear that the same law forbade the use of eminent domain to take church property for the traffic signals and sidewalks needed for a wider road.

One thing the case precedent is consistent about is that when there is a prohibition on government from condemning a specific object, be it a church, cemetery or something else, the courts will refuse the condemning agency’s attempts of involuntary acquisition.

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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.

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Mlive

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.

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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.  

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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.

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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. 

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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.

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6 ABC

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

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

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

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

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

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Hometown Annapolis

A plan proposed this week by Mayor Ellen O. Moyer to use eminent domain to break the lease for the near-vacant Market House caught some by surprise.

City officials took the first step in that process by sending a notice yesterday to Site Realty Group, the Silver Spring company that holds a 20-year lease on the historic City Dock building, that it defaulted on its lease by failing to pay rent and by failing to keep the facility filled with vendors.

Moyer and city officials said the city is exploring whether to repossess the building by using the rarely invoked process of eminent domain.

"(Funky) is an apt way to describe" the maneuver, said Jack Morkan, an attorney representing several vendors that are suing the city and Site Realty in county Circuit Court for lease breaches.

Morkan said he did not hear about the city's eminent domain plans, which Moyer unveiled in her State of the City address at City Hall Monday night, until a reporter from The Capital contacted him.

"The city is a constant source of amusement," he said. "I don't think they'll find any support for this in Maryland law."

Site Realty officials could not be reached for comment.

Eminent domain allows the government to seize land or a building for public use or, at times, to make way for economic development. The court system determines the fair value the government must pay in order to take over a property.

Maryland is still open in allowing governments to take for purposes the government sees as 'public use.' However, there is the shocking relief available to the owner, known as 'just compensation.' The government might more than it wants, like a big bill.

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NWAnews.com

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

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

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

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

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

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

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Cincinnati.com

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.

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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.

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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. 

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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.

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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.

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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.

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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.

 

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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.

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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.

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Mirror Takes

A Texas-based private natural gas company says it is filing for control of several Clearville properties after more than a year of unsuccessful communication and outreach with landowners who do not support its proposed project.

Meanwhile, a major federal regulatory agency is concerned about the landowners' complaints and has filed for additional time and a rehearing addressing the potential project.

Spectra Energy's Steckman Ridge natural gas storage facility was approved by the Federal Energy Regulatory Commission in early June.

…One of the major concerns of local residents is the possibility of losing out on royalties from the Marcellus Shale, a long section of sedimentary rock along the East Coast believed to harbor large amounts of untapped natural gas reserves.

If the storage facility is in place, designed to hold imported reserves from across the country or other nations, drilling for local reserves would be impossible.

…Spectra expects the 12-billion cubic foot facility to be completed and in service in April.

The Texas firm attempting to privatize the owner's gas and gas storage rights should carefully assess the economic (acquisition) costs of the project.  The owners have clear and succinct rights to compensation.  A close reading of the article verifies that such did not apply in this situation.

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Star Telegram

When a gas drilling company wants a piece of land for a pipeline, its representative usually shows up at the owner’s door with a letter from the Texas Railroad Commission, stating that the company has a right to take the land.

Pipeline companies can condemn land because they’re considered either utility companies, which serve the public the same as Atmos or TXU, or "common carriers," a legal term that means they carry oil or gas for anyone.

Major gas companies have formed their own pipeline divisions as they seek routes for gathering pipelines to serve the Barnett Shale. These divisions have the power to condemn land. ...

This is an article worth reading.  Consider the following questions when reading this article. When is a take effectively a private take?  Is there statutory relief needed?  What is the constitutional and statutory authority designed to limit “public use” \ pipeline takings?

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Fosters Daily Democrat

Until September 2006, the option of expanding the middle school onto Alumni Field was believed to be off the table.

A deed restriction on the property — which was donated to the city by the Peirce family in 1913 with the stipulation that it remain a park — requires the city to go through eminent domain proceedings to use the property for anything else.

In the past, Peirce family heirs have fiercely objected to building on one of the last green spaces left in downtown Portsmouth and the city has largely left it alone.

In 2006, the School Board learned from the city attorney that lifting the deed restriction was a possibility. Discussions over the past two years have focused on keeping the school on Parrot Avenue, but until Tuesday, the School Board had not made a recommendation.

Tuesday, School Board members voted 8-1 to send a "preferred option" of building on the property, to the left of the current middle school on Parrott Avenue, onto the City Council. This decision will have to meet with the approval of the City Council before any eminent domain proceedings begin.

School board members will address the size, programming and other issues at a future workshop.

The taking of reversionary interests is like any other taking of a private interest.  Donors of property to the public frequently seek the return of the property if placed in a different use.  A tougher issue may be finding all the heirs almost one hundred years later in order to obtain the releases.

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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. 

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DelMarvaNow

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

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

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

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

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


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

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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.
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-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.

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Delaware Online, August 23, 2007

Business owners in Wilmington are fighting the city’s plan to take their property using eminent domain.

Wilmington officials want to redevelop the riverfront, a plan 35 years in the making.

The city promised local business owner Ed Osborne and others fair market value and to relocate them to a business park near Garasches Lane.

-Clearly, communities need to redevelop blighted areas. The problem in Wilmington is that its citizens who are reasonable and responsible businessmen owning property in an area which is at least partially blighted. Then, the owners face the massive majority, such as that expressed in the Delaware Online article of the News Journal, in which it seems that the whole notion that there is nothing unfair in the process runs contrary to reality.

In the article, one of the questions raised was whether the owners were protected from abuse of authority.  The only answer is "no," they are not fully protected. The courts will hold that the government has the right to take the property unless there is a clear abuse of discretion in the governmental activity. This action is unlikely to be found in a situation where a major portion of the area is blighted. At the same time, the notion that owners will be protected just does not meet with the reality in which owners do not get paid for business interruption and other damages. Lost profits will be difficult to obtain, and the value of the businesses may not necessarily be paid.

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Pantagraph, July 10, 2007

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

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

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

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

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

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