Real Estate & Property Law

Ilya Somin Gets It Right: Abolish California Redevelopment Agencies

Posted on April 01, 2011
Ilya Somin's article accurately reflects what is happening in California. Governor Brown's proposal to eliminate hundreds of local 'redevelopment agencies,' which have abused condemnation power for years, is likely to protect property owners. While the proposal is premised on cutting California's gargantuan budget deficit, ridding the state of these agencies would also end a sad history of infringement on property rights in favor of private business interests...

ITC Thumb Loop: We Got It Wrong, Sorta

Posted on March 30, 2011
In a March 29, 2011 post, this blog chastised ITC for its letter to landowners in the path of the Thumb Loop Project. ITC wrote owners letting them know the company planed to begin surveying for a right-of-way. This blog chided ITC for failing to inform landowners that it planned to construct a double 345 kilovolt line—that is two power line towers running side-by-side through these owners' properties...

Idaho Works on Power Line Bill

Posted on March 28, 2011
A law stating that there must be a 'material benefit' to the state is a good star in limiting eminent domain power. But courts or the legislature will have to create standards to define 'material benefit' to ensure property owners are protected. Regardless, if an electrical transmission line passes through multiple states, however Idaho defines 'material benefit' will not matter because the Federal Energy Regulatory Commission, rather than a State agency, will handle the licensing, thereby negating the protections contemplated in this bill...

ITC Thumb Loop

Posted on March 28, 2011
ITC is moving forward on its proposed Thumb Loop electric transmission line. However, the company now faces the challenge of whether the statutory framework in Michigan will in fact give ITC the authority to condemn land for a right-of-way. ITC does not yet have the authority to acquire land by eminent domain at this time, despite approval of the project by the Michigan Public Service Commission...

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New Hampshire Electric Eminent Domain Bill Moves Forward

Posted on March 25, 2011
Considering utility officials have stated that eminent domain is rarely used, not having the power to condemn may be of little relevance. However, the reality is that the power to condemn, for better or for worse, is what settles so many cases. The Boston Globe The bill was amended to allow construction if the transmission facility is needed for reliability of the electric grid...

Willets Point Takes a Punch on the Nose

Posted on March 24, 2011
An individual charged with a crime is not guilty until proven so beyond a reasonable doubt. However, the claims against New York Lobbyist Richard Lipsky raise serious issues about what is going on in these projects. Apparently Lipsky was involved on both sides of eminent domain disputes in the $3 billion Willets Point redevelopment plan, among others...

Simply Saying "No" to Easement Offers

Posted on March 23, 2011
The article below offers insight on how to deal with condemning agencies. In reality, if an agency thinks it needs property, it will likely acquire it. In this writer's view, it is best to ascertain how you as an owner can protect yourself, rather than simply trying to make things more difficult for the agency...

What Does a Subdivision Own?

Posted on March 22, 2011
The Texas Court of Appeals ordered a trial court to rehear a case in which residents of a subdivision argued they had an interest in a bridge that was torn down, limiting access to the neighborhood. The issue will be whether the subdivision development appropriately assigned the bridge interest to homeowners in the subdivision...

Water Needs vs. Property Rights

Posted on March 21, 2011
Nevada needs to extend a water pipeline through Richard O'Neil's 12 acre retirement property. Many States have a procedure in which the government must first provide an appraisal prior to acquisition and attempt to negotiate with the owner based on his own appraisal...

Davidson County, Tennessee Gets it Together

Posted on March 18, 2011
Watching what has occurred in Tennessee's Third Circuit Court over the last couple years is amazing. Tower Investment, apparently located outside Tennessee but owning major investments therein, had the guts to challenge a very onerous system that referred all eminent domain cases to one judge...

Oklahoma House Approves Risky Bill

Posted on March 10, 2011
Simply returning the unused remainder of a tract of land to a prior property owner may not always be in the best interest of the owner or the community. Frequently, remainder tracts have a value to the owner adjacent to properties partially taken. To limit the rights of government once it has paid just compensation is not always beneficial...

Eminent Domain Amendment is Necessary in Virginia

Posted on March 09, 2011
Craig Wilson's opinion piece only reveals in a footnote that he is the principal planner for a major private planning firm. In reality, constitutional amendments may be necessary because legislation can be amended and repealed with ease.  The 2007 reforms were good, but not good enough...

The Value of Injection Well Storage Data

Posted on March 08, 2011
The New York Times article indicates that recycling waste water from natural gas mining can create deleterious health and safety effects. This shows the importance of finding injection well facilities to store drilling waste. Our desire to obtain mineral and energy sources hazards contaminating water supplies and the environment...

Following Statutory Requirements to Challenge Necessity

Posted on March 07, 2011
The case of In Re City of Syracuse Industrial Development, 910 N.Y.S. 2d 612, is an excellent example of yet another situation in which owners thought they could challenge necessity in a roundabout fashion. As in almost every other state, a statute specifically lays out the process to challenge a condemnation...

Speculators and Constitutional Amendment Are Not Related

Posted on March 01, 2011
Wayne State University Law Professor John Mogk has concluded that a 2006 amendment to the Michigan Constitution somehow benefits speculators buying Detroit properties at tax sales. The amendment limited the use of eminent domain for 'economic development' and required clear and convincing evidence to condemn land to alleviate blight...

Comstock Claims No Threat of Condemnation

Posted on February 28, 2011
Comstock Mining's actions indicate why legislatures are moving to limit mining companies' use of eminent domain. Comstock says it wants to be a good buddy to property owners. But if those owners refuse to sell, Comstock can ultimately force them to do so through condemnation...

Wyoming House Passes Energy Bill

Posted on February 27, 2011
The Montana House has passed a two-year extension to the moratorium on eminent domain activity. The real issue is, how does the State share the benefits of wind energy with its citizens, while protecting owners? Star Tribune House members also advanced legislation that would dramatically change the way Wyoming's wind energy industry is taxed -- and the way that tax revenue is distributed...

Arkansas Fair Moves Forward

Posted on February 25, 2011
Jacksonville is acquiring 40 to 45 acres to create a viable state fairground. However, it will seriously interfere with the activity of Entergy Arkansas and other owners in the area. One questions whether the municipality has thought this process through and considered whether a new state fair is worth the effect on owners...

Will Iowa Restrict the Use of Eminent Domain?

Posted on February 24, 2011
Iowa officials have always had a penchant for building large reservoirs. Containment and utilization of waters are a key part of state economic activity and farming. A reform bill  proposes to heighten the burden on condemning agencies from a preponderance of the evidence to clear and convincing proof...

A Public Use for a Public Use? North Charleston Sues South Carolina

Posted on February 23, 2011
The City's argument that its land is already maintaining a public use and thus may not be taken by the State for a different public use may have merit in certain circumstances. However, it is likely the State Legislature will simply limit this defense by statute and grant the State Department of Commerce clear authority to proceed with these condemnations...

Limiting Use of Eminent Domain for Mining

Posted on February 22, 2011
Affected property owners in Nevada oppose a statute that grants condemnation authority to private mining companies.  There is a proposed revision of the statute pending, but it may not offer enough protection if Courts deem mining a 'public use' under the Nevada Constitution...

Virginia Still Fights Against Kelo

Posted on February 15, 2011
Inevitably, Virginia will catch up to states like Michigan, which have enacted constitutional amendments limiting eminent domain to true public uses. These measures forbid condemnations for mere economic development that generates profit for private business...

Wyoming Energy is a Balancing Act

Posted on February 14, 2011
The looming moratorium on eminent domain is likely tethered to a process in which future tax increases are balanced against the desire of utilities to condemn the land of unwilling sellers. The legislature is not likely to delegate condemnation power to wind power transmission entities until they reach an agreement...

New York City Wants to Destroy Productive Business and Pay Low Compensation

Posted on February 13, 2011
Earlier this month, this blog wrote about the East Harlem 'renewal' project. The New York Times noted that the project, contemplated since 1968, is only being executed now. During this lengthy delay, many small business owners took the initiative the City lacked and built their own successful enterprises, questioning the designation of this area as 'blighted...

Taxpayers and the DRIC Bridge Project

Posted on February 11, 2011
Michigan's House Speaker, Republican Jase Bolger, is apparently conducting some due diligence to ensure the DRIC project will not dip into Michigan's treasury.  Bolger will be pleasantly surprised to find that Michigan will be able to move forward with this project without costing taxpayers anything...

Nashville Catches Up

Posted on February 09, 2011
The Tennessean did an outstanding job over uncovering and eventually ending the 20-year-old practice of sending all eminent domain cases to one Nashville judge. This creates prejudice in spirit, if not in fact. However, the practice of assigning all condemnation cases to one judge continues in many communities...

The Wyoming Windmill Challenge

Posted on February 07, 2011
Windmill developers tend to favor owners upon whose land windmills themselves are located. Property owners in the path of proposed transmission lines for these projects react negatively to this disparate treatment. Meanwhile, the Wyoming legislature continues to work out a solution with little progress...

Common Sense Reform in South Dakota

Posted on February 04, 2011
The editorial below raises an interesting issue. At what point in the planning process can an agency initiate condemnation proceedings? How many permits or approvals must a company like TransCanada obtain for its Keystone XL interstate oil pipeline before it can begin land acquisition? If agencies initiate condemnation early in the permitting process, the damage to property owners is more extensive...

Where Will Montana Go with Eminent Domain?

Posted on February 03, 2011
A trial court property determined that a transmission company could not acquire land to build a power line through central Montana because there had been no statutory delegation of eminent domain power. To remedy the situation, Governor Schweitzer is urging the Montana Legislature to enact a law giving transmission companies and other utilities condemnation power...

What Happens Once all the Easements Are Acquired?

Posted on February 01, 2011
This blog has previously discussed the Laser Marcellus Gathering LLC 33-mile natural gas pipeline extension. The company failed to obtain 'utility' status, meaning it did not possess the eminent domain power. Yet, in stark contrast to many other recent utility expansion projects, Laser Marcellus was able to obtain a right-of-way through voluntary purchase agreements with landowners...

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