National Eminent Domain Blog

Intermodal Facilities

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 08 Jul 2009 16:08:51 -0600

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

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

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

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

The Post and Courier

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

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

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

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

Flood Protection

aackerman@sbcglobal.net (Alan Ackerman) — Mon, 06 Jul 2009 16:23:31 -0600

InForum

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following is the unedited text of the form letter:

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

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

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

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

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

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

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

Economic Development

aackerman@sbcglobal.net (Alan Ackerman) — Sat, 04 Jul 2009 10:07:00 -0600

North Carolina News Network

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

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

Federal Courts

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 01 Jul 2009 07:04:14 -0600

West Virginia Record

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

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

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

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

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

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

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

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

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

Blight

aackerman@sbcglobal.net (Alan Ackerman) — Sun, 28 Jun 2009 17:24:11 -0600

Roanoke Virginia Times

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

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

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

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

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

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

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

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

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

Undergroud Energy Storage

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 24 Jun 2009 16:50:07 -0600

Des Moines Register

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

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

A Simple Apology

aackerman@sbcglobal.net (Alan Ackerman) — Mon, 22 Jun 2009 18:36:07 -0600

LoHud.com

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

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

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

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

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

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

Assessed Value Compared to FMV

aackerman@sbcglobal.net (Alan Ackerman) — Fri, 19 Jun 2009 16:13:05 -0600

Business Week

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

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

What's wrong with this picture?

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

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

School Land for Airport

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 17 Jun 2009 15:28:28 -0600

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.

Airport Wants School Property

aackerman@sbcglobal.net (Alan Ackerman) — Mon, 15 Jun 2009 18:53:14 -0600

Gary Post Tribune

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

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

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

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

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

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

Quick Take Proceedings

aackerman@sbcglobal.net (Alan Ackerman) — Thu, 11 Jun 2009 15:33:50 -0600

Daily Press

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Colo. governor blocks Army expansion on ranchland

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 10 Jun 2009 15:33:17 -0600

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

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

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

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

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

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

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

Underestimating Ohio Property

aackerman@sbcglobal.net (Alan Ackerman) — Mon, 08 Jun 2009 20:09:16 -0600

Newark Advocate

John Boesch's house stands vacant along Ohio 161, with the only sign of life being the big yellow one declaring his feelings for the state transportation agency.

Many of his neighbors lost their houses entirely to the new four-lane highway project, which is scheduled for completion in May 2010. The Ohio Department of Transportation has spent $41.6 million just on property acquisition, far more than it offered the dozens of property owners along the highway.

On average, property owners who took ODOT to court before giving up their land for the new Ohio 161/37 gained almost $250,000 more than they originally were offered, according to records obtained from the state in a public records request.

Of the people who ended up in court, the median increase they received was 82.8 percent greater than the original offer, or $65,000 more. By contrast, the additional money received by property owners by negotiating with ODOT or because of additional damages was 5.6 percent higher than the original offer, or $9,700 more.

In the end, the median amount property owners received was $154,000, including both people who lost their homes and those who lost land.

Bill and Helen Bettac joke about people wondering if they made millions. They received $165,000 for a house they were told was worth $285,000 by others.

Condemning agencies generally try to "do it right" although they often undervalue property. However, the extent of underestimation described in the Newark, Ohio newspaper seems outside a statistically reasonable range of error.

California Full Circle

aackerman@sbcglobal.net (Alan Ackerman) — Thu, 04 Jun 2009 14:59:43 -0600

Desert Dispatch

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

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

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

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

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

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

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

Ohio Water Rate Hikes

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 03 Jun 2009 16:50:55 -0600

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

aackerman@sbcglobal.net (Alan Ackerman) — Tue, 02 Jun 2009 10:54:40 -0600

The Philadelphia Inquirer

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

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

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

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

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

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

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

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

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

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

345-kilovolt transmission line to carry electricity from wind farms

aackerman@sbcglobal.net (Alan Ackerman) — Sun, 31 May 2009 13:39:15 -0600

Enid News

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

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

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

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

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

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

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

Syracuse Macy's Condemnation

aackerman@sbcglobal.net (Alan Ackerman) — Fri, 29 May 2009 09:55:20 -0600

Syracuse.com

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

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

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

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

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

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

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

Warwick Runway Expansion

aackerman@sbcglobal.net (Alan Ackerman) — Wed, 27 May 2009 14:33:58 -0600

NECN

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

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

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

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

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

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

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

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

Benton Harbor- Universal Offer

aackerman@sbcglobal.net (Alan Ackerman) — Tue, 26 May 2009 09:05:29 -0600

Herald Palladium

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

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

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

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

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

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

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

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