National Eminent Domain Blog

An Interesting Article on the Amendment of Article X Section 2 of the Michigan Constitution

Alan Ackerman — Thu, 17 May 2012 08:02:25 -0600

An article written by then Law Review student, Adam Rubin, entitled “The Changing Face of Eminent Domain Law in Michigan..Amending Article X Section 2 of the Michigan Constitution” provides an excellent synopsis of the modification caused by the Poletown reversal of Hathcock. The Constitutional Amendment, in part, incorporated the decision of Hathcock, codifying it so that Hathcock could never be reversed as Poletown was.

This article offers interesting insight into the Constitutional Amendment process and the affect of the Amendment on the Public Use Provision of the Michigan Constitution.

The Changing Face of Eminent Domain Law in Michigan...

Virginia Beach Church and Community Arrive At An Agreement

Alan Ackerman — Thu, 17 May 2012 07:55:30 -0600

After a lengthy dispute, Emmanuel Episcopal Church was given the go ahead that it could build an expansion 12 years ago. The City sought to condemn where the Church expanded into. The City has finally come to an agreement as to a fair exchange of property and payment of just compensation. This might look like a total victory for the Church, but, at best, the action will make the Church whole.

The lay leadership of the Church should be proud of its responsible decision making so that a reasonable result was finally arrived at.

PilotOnline.com

Church leaders have said that about 12 years ago, before renovating their parish hall and building a preschool, they asked city officials whether there were plans to work on the intersection. They said they were told no and proceeded with the $2 million school construction.

Two weeks after the church dedicated the school, the city announced plans to realign the intersection, including taking a half-acre of the church's property, church officials have said.

When the project is finished, the six-lane road will be 70 feet from the church's preschool. Church members called that proximity a threat to student safety.

What Happens Next When Enbridge Wants Your Property

Alan Ackerman — Thu, 17 May 2012 07:50:43 -0600

Enbridge is installing replacement pipeline for the vast majority of the line which created havoc in the Kalamazoo River. This is a good thing for the environment and a good thing for Enbridge. It may not be so good for the owners who have their properties torn apart with a de minimus compensation.
Enbridge is also acquiring another 50-mile right-of-way for installation of a replacement line in a different area from where it previously existed.

At this time, Enbridge has filed its Petition and the MPSC staff has now filed its response. Shortly, the filing will be sent to the affected owners of the properties; thereby allowing owners to challenge the project or any part of the project should they so choose.

This blog is not telling owners to challenge the project, nor is it telling the owners that they can challenge the project. Quite simply, owners should be aware they have the opportunity to review what Enbridge is doing and speak their individual minds about the issues involved.

Pipeline Fight Continues in Ohio

Alan Ackerman — Thu, 10 May 2012 09:25:25 -0600

Enterprise Products Partners, LP continues in the construction of a 1,230 mile pipeline from Pennsylvania to Texas. The pipeline is cutting through rural Ohio.

The very capable firm of Braunstein and Goldman have provided advice to many of the neighbors along the route. As noted in the attached Newark Advocate article, the offers have already been forthcoming to some. There is a process in which to challenge the project itself at this time. If the challenges to the project fail, the owners are left only to obtain fair compensation. Goldman and Braunstein are two capable lawyers who likely would represent these owners well should they determine they want to fight the project and be treated fairly.

Newark Advocate

About 30 percent to 40 percent of residents along the route already have received offers, Goldman said. They should consult with an attorney before signing anything, Goldman said.

"It's going on right now," Goldman said of surveyors placing stakes in the area. "If you haven't been contacted, you will be, probably within 60 to 90 days. One of the worst things you can do is succumb to the initial pressure.

"They say, 'We're going to take your land, and we'll tell you how much it's worth.' You may think it is the greatest offer. You still ought to have somebody else look at it."

The attorneys told residents there is no charge to call for their preliminary opinions and assistance, and they bill property owners only after an offer is negotiated above the original offer.

A Harsher View of a Hospital's Use of Eminent Domain

Alan Ackerman — Thu, 10 May 2012 09:03:57 -0600

The “Land Grab” article in The Dallas Observer News on May 3, 2012 creates a much harsher picture of the eminent domain process than what was described in this blog earlier in the week. Rather than simply an expansion for a hospital use, thereby deemed something of a “public” nature and therefore Public Use in many states, Parkland Hospital is purchasing land in order to make a profit. One has to wonder whether this falls within the Public Use standard as contemplated by both the United States and State of Texas Constitutions.

The Dallas Observer News

Eminent domain, the principle that allows government to force a landowner to sell, is usually thought of as serving public purposes, like building new highways. But in the last two years Dallas County's public hospital district has been adventuring in a new version — eminent domain for profit.

Acting on a 2008 consultant's proposal, Parkland Memorial Hospital has been acquiring far more land than it requires for its new $1.3 billion hospital building and campus, some of it as far as half a mile from the construction site, which sits two and a half miles northeast of downtown on Harry Hines Boulevard.

Why? So when the value of the land goes up, Parkland can make money.

The Changing Face of eminent domain Law in Michigan: Amending Article X, Section 2 of The Michigan Constitution

Alan Ackerman — Mon, 07 May 2012 14:59:19 -0600

Adam Rubin

Introduction

Eminent domain is not an enumerated power, but the original drafters sought to place limitations on the government’s use of the power through the constitution. Over the last half century case law has developed and attempted to define the constitutional limitations placed on the power of the government to take private property. The Michigan Supreme Court has issued leading decisions in the prominent cases of Poletown Neighborhood Council v. Detroit and County of Wayne v. Hathcock. The Poletown and Hathcock courts’ conflicting interpretations of article X, section 2 of the Michigan Constitution of 1963 emphasized the need for new legislation protecting Michigan property owners. The Hathcock opinion allowed for subsequent Michigan Supreme Court panels to reverse Hathcock and place property owners in a situation in which they have limited protection from governmental intrusion for suspect public use takings.

The Changing Face of Eminent Domain

Willets Point Owners Win? Only Time Will Tell.

Alan Ackerman — Mon, 07 May 2012 13:47:38 -0600

In reading the New York Observer article, one wonders where Willets Point will go. On the one hand, owners are protected because their constitutional right to private property is maintained. On the other hand, the area clearly needs redevelopment. Yet, part of the reason the area needs redevelopment is because it maintains so many uses that cannot be maintained in other parts of the community.

The result of this is a much smaller project, with a number of owners who fought the condemnation allowed to continue in operation at their present locations. This may or may not be beneficial to the owners in the long run. Only time will tell.

New York Observer

The project had been broken up into three phases, a result both of the recession, which left developers leery to take on the project, but also the fact that there were still dozens of properties within the 62-acre site that the city did not yet own. Splitting the project into phases meant at least part of the redevelopment could proceed, arguably the most important part, the 20 acres closest to neighboring Citi Field. For the first phase, 680,000 square feet of retail and 400 units of housing were planned.

Another reason the initial plan was abandoned was that all the developers interested in the project—other contenders were Silverstein Properties, TDC, and Avalon Bay—were unsure of the ability to execute even such a modest proposal for one of the most complex sites in the city.

Part of the reason Willets Point became the Iron Triangle is the land is essentially a bog, lying a good six feet below the rest of the area. It would require significant excavation and landfill to bring it up to grade. Further complicating matters, centuries of industrial activity—remember the valley of ashes?—has left the ground heavily polluted. Any development would require significant remediation of the site before it could move forward.

These vexing issues caused all four of Willets Point finalists to propose plans outside the parameters of the phase 1 request for proposals. It appears the city took the proposal it found to be most acceptable and is proceeding with that.

Frustration With Hospital Eminent Domain

Alan Ackerman — Mon, 07 May 2012 13:45:26 -0600

Many States allow hospitals to condemn. In these States, the hospitals are regulated by the State and expansions of hospitals are considered to be public uses. This emanates out of the historical context of most communities creating their own hospital systems. At this time many hospitals mostly non-profit, but private just the same have the power to condemn. As such, hospitals seek to control their destiny by assuring that the property around the hospital is used in conformity with the hospital use. However, private developers can construct the same medical office development as the hospital. This makes for frequent fights between adjacent landowners and hospital authorities.

Dallas Observer

Eminent domain, the principle that allows government to force a landowner to sell, is usually thought of as serving public purposes, like building new highways. But in the last two years Dallas County's public hospital district has been adventuring in a new version — eminent domain for profit.

Acting on a 2008 consultant's proposal, Parkland Memorial Hospital has been acquiring far more land than it requires for its new $1.3 billion hospital building and campus, some of it as far as half a mile from the construction site, which sits two and a half miles northeast of downtown on Harry Hines Boulevard.

Why? So when the value of the land goes up, Parkland can make money.

Kelo Fight in Virginia Continues

Alan Ackerman — Mon, 07 May 2012 13:41:18 -0600

Although the legislature passed a 2007 bill restricting eminent domain actions, the Hampton Boulevard redevelopment project was excluded by the legislature. This raises a number of questions about whether there can be different treatment of different properties. The retroactive nature of the legislation creates its own issues under the Virginia constitutional framework.

When a First Amendment issue of freedom of speech is raised, there is always an additional challenge to the community.

Fredericksburg

Eminent domain abuse occurs when a condemning authority takes private property and gives it to another entity for economic development. The General Assembly passed a bill to curtail this in Virginia in 2007; unfortunately, the Hampton Boulevard Redevelopment Project was grandfathered in.

In America, when governments exercise power wrongly, the First Amendment right to free speech allows the little guy to fight back. Except in Norfolk, where the city fathers know how to play hardball.

ITC Continues In Its Thumb Project

Alan Ackerman — Mon, 07 May 2012 13:36:31 -0600

ITC is required by MPSC to finish the project providing for transmission lines through the Thumb. Because of this requirement, ITC is moving forward to initiate appraisals in the remaining parts of Huron County and all of Sanilac County in order to complete the project in a timely fashion. The process requires ITC to make a good faith written offer of not less than an appraised value. At this time, ITC is purportedly offering about $5,700 per acre, in Sanilac, with only a portion of the per acre price being paid because the purported easement does not affect the remaining property interest. Clearly, there will be disputes about the damages at some future date. However, ITC is moving forward as should and would be expected.

Outstanding Law Student Analysis of Eminent Domain and the Proposed Amendment to the Virginia Constitution

Alan Ackerman — Wed, 02 May 2012 10:27:29 -0600

Joseph Viviano, MSU College of Law ‘12, has provided an outstanding analysis and PowerPoint presentation of the proposed amendment to the Virginia Constitution.

Any constitutional change, especially one so dear to the hearts of so many people as eminent domain, will present frustration, anger and confusion. Mr. Viviano has prepared an outstanding analysis of the positives and negatives of the amendment.

The analysis written by Mr. Viviano may be one of the few which offers some balance, because the public sentiment is so strongly in favor of the amendment and a sophisticated political bureaucracy is so opposed to the amendment that having a balance explaining all the various issues is difficult to find.

Eminent Domain in Virginia

An Analysis of Virginia Senate Joint Resolution 3

Joseph J. Viviano

I. Introduction

Eminent domain constitutional reform has been underway in Virginia for the last two years. The proposed constitutional amendment, Virginia Senate Joint Resolution 3, will greatly expand constitutional protections for Virginian landowners. Many of these protections already exist in the Virginia Code. However, property owners will receive two additional protections when their property is taken or damaged by the government: the right to lost profits and the right to compensation caused by a loss of access. This Paper proceeds by first explaining the development of constitutional eminent domain law in Virginia to provide context for examining Senate Joint Resolution 3. Next, the effect the proposed constitutional will have on current law in Virginia is analyzed. Finally, this Paper concludes by rebutting arguments opposing Senate Joint Resolution 3.

II. A Brief History of Eminent Domain in Virginia and Constitutional Reform

Absent a constitutional provision to the contrary, the State's power to take or control the use of private property for the public's benefit is absolute. This is inherent in the meaning of “eminent domain,” which the Virginia Supreme Court has defined as:

the right on the part of the state to take or control the use of private property for the public benefit when public necessity demands it, is inherent in every sovereignty, and is inseparable from sovereignty, unless denied to it by its fundamental law.[1]

[1] City of Roanoke v. Berkowitz, 80 Va. 616, 619 (1885) (emphasis added).

Eminent Domain and the Proposed Amendment to the Virginia Constitution (Powerpoint)

Detroit Free Press Pushes For DRIC Bridge

Alan Ackerman — Tue, 01 May 2012 14:05:19 -0600

The Detroit Free Press is finally appropriately discussing issues with the Bridge.

While the Detroit Free Press endorsed the DRIC bridge, now called the NITC Bridge, for over a year, only now does it recognize the discussion of the nasty political campaign paid for by the Detroit International Bridge Company should be dealt with in a direct fashion.

As long as the Bridge Company sticks to the facts, it will not see these types of articles and opinions as presented in the attached opinion of the Detroit Free Press. However, when the issues are confused or misrepresented, the personality and the attacks will be met with a hostile public and press reception.

Detroit Free Press

But against this rising consensus, Moroun has mounted an ever louder, more desperate propaganda campaign. He's now bankrolling a series of falsehood-ridden TV spots that accuse the new bridge's sponsors and the Canadian government of colluding against him and his plans to build his own new private bridge next to the 82-year-old Ambassador.

But a bridge is a road across water -- not much different from any highway or interchange. We entrust that kind of infrastructure to governments accountable to the public, not private companies beholden to stockholders. Moroun's losing courtroom battles with the state over the Gateway Project, which ties freeways into the Ambassador, reveal his difficulty in seeing beyond his own interests.

Fall River Massachusetts Seeks Kelo Limits

Alan Ackerman — Tue, 01 May 2012 14:02:23 -0600

The Fall River administration is seeking property for a potential future Indian resort casino site.

The community might find itself in a true conflict, bringing Kelo questions to Massachusetts. The issues of the highest and best use of the property may be the only way to stop the project.

Herald News

Fall River City Councilor Ray Mitchell’s proposal for the city to "consider taking" — by eminent domain powers — a 230-acre property that the Aquinnah Wampanoag Indian tribe is eyeing for a possible resort casino site represents the latest troubling example of governmental overreach.

In an apparent attempt to address the "NIMBY" concerns expressed by residents in the rural eastern corner of the city where the undeveloped parcel sits, Mitchell has proposed the land taking to preserve as a bioreserve.

Mitchell is clearly putting the cart well ahead of the horse. While neighbors and at least some city officials do not support the idea of a resort casino, the Aquinnah plan is far from reality, and the tribe is looking at several locations throughout Massachusetts for its casino. For the city to take such a large private property at a significant expense — Mitchell estimates the cost of $1 million — would be a shortsighted attempt to stop a perceived "problem" that does not yet exist.

While Mitchell expressed hope that the city would be able to pay for such a land taking through federal and state preservation grants, that is also a long shot. And how much would permanently taking developable land off the tax rolls cost the city over the years?

Sharyland Wind Lines Move Forward

Alan Ackerman — Tue, 01 May 2012 13:58:47 -0600

Texas ranch owners must deal with the fact that the Sharyland Wind Line has received authorization from the Public Utility Commission of Texas to install a transmission line along an improved route. Dealing with the valuation process is always difficult, but will be especially comlicated when many valuable farms are severely interfered with.

The valuation issues offer great uncertainty, and the owners will have to go through a judicial process, retaining capable attorneys who will retain capable experts.

Outstanding Oil Attorney John Keller Explains Mandatory Pooling

Alan Ackerman — Thu, 26 Apr 2012 11:43:58 -0600

John Keller, the outstanding mineral attorney in Ohio, explained the reason for “conservation statutes” and mandatory pooling. Without mandatory pooling, people would end up losing their right to the minerals below their property without a voluntary transfer or payment. No one wants to be forced to give up anything, yet, our society has a preference favoring oil exploration, conservation and production. Statutory mandatory pooling offers the opportunity to fulfill public policy. John Keller has this right in his comments.

Bluefield Daily Telegraph/Associated Press

Mandatory pooling gives drillers the ability to overcome a landowner’s objections to drilling on his property if enough neighbors have agreed to the well drilling. The resisting landowner is paid for the oil or gas taken.

Laws allowing mandatory pooling began springing up across the nation in the 1960s in response to what was seen as wasteful over-drilling.

Such laws are drawing new criticism as hydraulically fractured wells reach more heavily populated areas, and public attention rises over oil and gas drilling in the Marcellus and Utica shale formations that lie under Ohio, Pennsylvania, New York and other northeastern states...

Laws on mandatory pooling were intended to assure that profits from drilling were shared among both willing and unwilling property owners, said John Keller, a Columbus lawyer who represents Ohio drillers in their pooling requests.

The arrangement prevents neighbors from allowing drillers to suck resources from under another’s land without compensation, while allowing interested landowners to exercise their mineral rights.

He said they were dubbed “conservation statutes” that would discourage several neighbors from each drilling wells extending down into the same deposit “like several straws going into the same Coke bottle.” That was seen as both blighting the landscape and shrinking profits for everyone involved by reducing the underground pressure that dictates how much oil or gas is produced.

“People were spending more money and getting less as a result,” Keller said.

Dealing With Pipelines in Michigan

Alan Ackerman — Thu, 26 Apr 2012 11:38:55 -0600

Dealing with pipelines in Michigan and other States may be somewhat similar.

Oil pipelines are deemed necessary by our Federal and many State governments because the safe and efficient transportation of oil to refineries is required if we are to have enough gas and oil to support our uses. Clearly, landowners would prefer if the pipelines traversed properties owned by someone else. However, the pipeline companies are somewhat limited in where pipelines may be placed by the natural environment as well as the basic expense.

Most of the owners who will face pipeline acquisition will find that they are located in ex-urban or rural areas. If pipelines are far from their houses, the perceived damage to the property may be somewhat minimized. However, if the pipelines are near residences or outbuildings, the damages can be substantial.

One thing that owners may do is seek to have the pipeline companies enter the property by borings, meaning directionally boring the pipeline route under the property without disrupting the surface of the property or affecting the vegetation on the property. The first thing an owner should do when facing a pipeline is likely to simply ask that the pipeline be moved somewhere else. When the absolute “no” response is given, the owner should then request boring, in order to minimize the damage to the property.

This does not mean just compensation will not be paid, but it be reduced if the impacts are minimized. Further, pipeline routing has its own system of valuation, which will frequently require the outside expertise of appraisers and lawyers.

What Happens When A Natural Gas Storage Lease Expires?

Alan Ackerman — Thu, 26 Apr 2012 11:26:27 -0600

For whatever reason, years ago, it was apparently thought among both gas storage companies and landowners that the need for gas storage would be something that only would occur for 20 or 30 years. Many gas storage companies and landowners frequently entered into leases in which a depleted reservoir would be utilized for gas storage until permanent gas storage facilities were built elsewhere.

The reality is that there is substantial demand for gas storage that has increased over the years. This is the very reason why gas storage applications continue at both FERC and many States.
Many of the term leases now are expiring. Each lease has its own need for specific re-negotiation. In the alternative, gas storage companies likely will seek utility commission approval needed to condemn the properties. The eminent domain process offers its own difficulties. Yet, landowners should recognize that they need to be fairly treated in the valuable property interest maintained for natural gas storage.

Financial Stability Agreement Holds Promise for Detroit's Redevelopment

Alan Ackerman — Tue, 24 Apr 2012 07:48:50 -0600

The Financial Stability Agreement is more than simply the ceding of control of power from the City of Detroit to the State of Michigan To the contrary, it is recognition by the Michigan Department of Treasury and the City of Detroit that, if the two work together, there will be great improvements in the community and in the state. By example, among the topics of Annex E to the Agreement is a list of supportive activities to be provided by the Treasury Department and state.

Clearly, the city is having an awful time with its infrastructure improvements. At Annex E, Page 2, the Agreement includes a paragraph designated as “Invest in Transportation Infrastructure.” This includes major activity in the community, such as moving ahead with the New International Trade Crossing Project. This project, commonly called DRIC for the Detroit River International Crossing, has changed its name in the hope that a good project with a weak brand will do better with a new name. However, one should recognize that the DRIC project was a good project under its old name and is still a good one with its new one.

Further, the Invest in Transportation Infrastructure includes expanding and facilitating an improved Detroit Intermodal Freight Terminal. As stated in the Agreement, this will “ensure that southeast Michigan has regional facilities with sufficient capacity and interconnectivity to provide for existing and future intermodal demand and reducing time, costs, and congestion.” One must recognize that without a new international trade crossing, the Detroit Intermodal Freight Terminal (DIFT project) will not occur. DIFT cannot be built until the engineering and plans provide for an entrance contemplating the location of the International industrial/truck bridge.

If a new bridge is built at the present Detroit International Bridge site, the terminal will have great difficulty in being appropriately located on the west side of Livernois and north side of Vernor. DIFT is a key to the economic well being of the region. Without proper intermodal transportation, production costs will go up dramatically, and the demand for products in our area will decline (a new rail tunnel also is being planned that would effectively connect international trade from Canada and beyond to DIFT).

Local transportation is also included in the infrastructure improvement plan. The capacity improvement for I-94, from I-96 to Connor Avenue, is a priority. Further, the final engineering and construction of the west Detroit junction railroad project provides for a shorter and faster route for inter-city passengers.

The Financial Stability Agreement bodes well for the redevelopment of Detroit, because the basic transportation infrastructure needs will be supplied. The Governor, Mayor, and City Council are to be applauded for a job well done.

Enbridge Energy Line Moves Forward

Alan Ackerman — Mon, 23 Apr 2012 14:00:47 -0600

In an article which is bent on attacking Enbridge, the company is trying to defend itself from the disaster on the Kalamazoo River. This is a very difficult situation for Enbridge to defend, because the oil spill that occurred was just horrifying.

Enbridge is constructing a replacement pipeline so as to avoid the problems from occurring again.

The notion that there is no damage is ridiculous is many situations, and in many situations the notion that there is damage may be just as ridiculous. However, Enbridge will have to work through this process, on a parcel by parcel basis, and Michigan property owners will have the opportunity to exercise the constitutional right of defending themselves from the taking and for the payment of Just Compensation.

Livingston Daily

The existing piping would remain in the ground, but will be taken offline, purged of oil and filled with nitrogen, Martucci explained. The old pipes would be monitored.

Some property owners may be asked to provide up to an additional 25 feet of easement for the project, he added.

He said landowners would be compensated on a case-by-case basis based on prevailing land values, and to the degree properties are altered for the work.

Martucci said the Marshall incident is inconsequential to the current proposal. He said the Marshall incident is still being investigated by the National Transportation Safety Board, and is being addressed by Enbridge.

If You Lose at the Legislature, Get A Vote!

Alan Ackerman — Mon, 23 Apr 2012 13:59:22 -0600

There is a famous old lawyer’s expression that " If a lawyer cannot rely upon the law, rely on the facts. If the lawyer cannot rely on the facts, the lawyer relies on the law. If the lawyer can rely on neither the facts nor the law, he just yells."

This expression has its own meaning when it comes to legislation. For years, the Bridge Company has successfully lobbied the Michigan legislature to stop the necessary development of an international crossing. Now, when it is foreseeable that the legislature will allow a bonded public bridge, a prerequisite to the economic Michigan development, the Bridge Company is seeking relief from the voters.

Hopefully, Michigan voters will be smarter on this than all these crazy votes on gambling casinos.

Detroit Free Press

The Detroit International Bridge Co. said this afternoon it is undertaking a drive for a statewide referendum in November that would require Michigan voters to approve any new bridge or tunnel to Canada.

Matthew Moroun, vice chairman of the Detroit International Bridge Co. and owner with his father, Manuel (Matty) Moroun, of the Ambassador Bridge, said voters deserve to say whether the state should commit resources to a new bridge project.

"That’s a vote that we’d have to live with if we lost, and that’s a vote that (Snyder) would have to live with if he lost," Moroun said this afternoon.

The State Board of Canvassers will review the proposed language of the petition drive, and then backers would have to collect more than 300,000 signatures of registered voters to put the measure on the ballot.