Category: Michigan Eminent Domain

Legal Battles Loom over Land for New Bridge

As the State of Michigan has started making offers on non-residential properties it needs to begin construction on the Gordie Howe International Bridge, multiple legal battles could be looming for the state. One such property, The First Latin American Baptist Church, located at 6205 W. Fort St., rejected an offer in late July from the Michigan Department of Transportation (MDOT) because the offer was too low, according to an article by Louis Aguilar of The Detroit News.

Alan Ackerman, a partner at Ackerman Ackerman & Dynkowski, representing the church, told Aguilar, “Their methodology may have been suspect. We are getting our own appraisal done.”

This is not the only battle the state may be facing. Manuel (Matty) Maroun, owner of the Ambassador Bridge, is a strong opponent of the new bridge, and owns about 30 parcels of land needed by the state to begin construction on the bridge. If Moroun refuses the state’s offers, a court fight could last years. As Ackerman explained in an article by John Gallagher of the Detroit Free Press, these eminent domain cases could take anywhere from eight months to as long as five years.

With the state needing to acquire about 670 parcels to start construction on the bridge, about half of which has been purchased, MDOT officials estimate that the bridge will be built in time – a prediction that is too optimistic, Ackerman believes.

Ackerman believes the bridge will not be finished until 2023, and not until all parties reach an agreement with Moroun, he told Jack Lessenberry in an editorial for the Detroit Metro Times.

“I’ve never seen anything like the power of Matty Moroun,” Ackerman said. “He gets anything he wants.”

It remains to be seen just how long this process will take, but with many businesses still awaiting long-overdue offers from the state, MDOT’s hopes for a bridge built by 2020 are appearing more and more like a pipe dream.

Crown Trucking is right on this one!

Crown Enterprise desires to build its own “truck hub” near a General Motors plant. The community maintains a competing project. Therefore, the community is fighting the truck company.

This is not analogous to the Bridge where there is demand for additional transport between the United States and Canada. Here, this is a situation in which Mr. Maroon and Crown Enterprises properly desires to proceed and protect its own interest against the public competition.

“Rather than neutrally considering the appropriate statutory factors in evaluating Crown’s rezoning petition, the Board of Commissioners improperly considered Allen County’s financial interest in a competing real estate development and the related interest in validating the Board of Commissioners’ highly controversial decision to direct Allen County to invest in that competing real estate development,” the suit says.

The “competing” development is identified as the county-owned, shovel-ready Stonebridge Business Park, where NorthPoint Development of Kansas City, Missouri, had purchased land and options with plans for another trucking facility. Stonebridge is across Lafayette Center Road, just south of GM.

The suit also contends that the denial was not based on law and that it “improperly considered arguments by opponents,” neighbors of the project, who should not have had input because they did not live close enough to the project.

The commissioners also improperly ignored county planning documents; the plan commission’s previous approval of the project; and a written commitment from Crown to mitigate neighbors’ concerns, the suit contends.”

Click here to read more.

Why Repair the Ambassador Bridge?

Jack Lessenberry suggests that the eminent domain will take care of the Ambassador Bridge safety issues. Realistically, the government of the United States or Canada should be allowed to properly determine whether there are safety issues with the existing Ambassador Bridge. Just as realistically, Mr. Moroun desires to build a new bridge as a “replacement” and then repair the old bridge.

Clearly the existing Ambassador Bridge will need repair and replacement. “Age hurts!” These are not Roman aqueducts made of concrete but rather metal objects which may rust and deteriorate. One would suspect when there is certainty that the new Gordie Howe Bridge will be built, Mr. Moroun may receive his request to build a second (replacement) bridge. It will be interesting to see if he does when he has competition on bridge traffic for the first time. One thing is clear; the construction of the Gordie Howe Bridge will change truck traffic patterns so dramatically that the profitability of the Ambassador Bridge may be somewhat or severely diminished.

http://www.toledoblade.com/JackLessenberry/2015/10/30/It-s-time-for-Americans-and-Canadians-to-own-the-Ambassador-Bridge.html

DETROIT — Think about this radical idea: The United States and Canada should invoke eminent domain and force Ambassador Bridge owner Manuel Moroun to sell the structure, which links Detroit with Windsor, Ont., to both governments.

That’s not a plea for Soviet-style socialism. Most capitalist nations around the world would think it was crazy ever to have allowed one man to own an international border crossing, let alone one he claims neither nation has a right to regulate or inspect.

The Ambassador Bridge is the most economically important trade crossing in North America, with more than $130 billion in freight, mainly heavy manufacturing components, moving across it each year. Were the Moroun family composed of good citizens, this bizarre arrangement might be overlooked.
Read more at http://www.toledoblade.com/JackLessenberry/2015/10/30/It-s-time-for-Americans-and-Canadians-to-own-the-Ambassador-Bridge.html#FjBkOHX1QFWgUjC4.99

Rover Pipeline Creates Consternation in Michigan

A recent article about the Rover Pipeline in Livingston County raises all sorts of interesting issues.

First, a state senator implies that one can simply get agents in line and “pull them in and slap them.” Who is he kidding? Agents do what they can to acquire their property at simply the lowest price.

Second, is an implication in the article that owners have to sell their property. Realistically, the owners can face an eminent domain by simply objecting to the offer and waiting for a filing. First, of course, the owner has to obtain FERC approval.

Finally, the article accurately describes Rover’s multiple offer, multiple and variable easements and the havoc that is created by the offering process utilized by the proposed, butnot yet approved eminent domain action.

A number of out-of-state law firms have been soliciting eminent domain work in the community. While one recognizes a discontent with representation by non-local lawyers, one hopes that the lawyers do a capable job in representation of the owners.

http://www.livingstondaily.com/story/news/local/community/putnam-township/2015/09/14/et-rover-pipeline-debated/72288148/

Sen. Joe Hune said after the meeting that the pipeline should be “done safely and done in accordance with being a responsible neighbor.”

“There was a lot of concern and questions from folks who have been dealing with the land agents of the pipeline company. So, that is something we can definitely, hopefully, have an impact on. Make sure that the land agents are doing things on the up and up and not playing one neighbor off of another,” Sen. Hune said.

If land agents step out of line, the solution is to “pull them in and slap them in line,” he said.

“An overall decision of this pipeline lays (in the hands of) the federal government. The local community doesn’t have a tremendous amount of clout in the process and the state legislators have almost no clout outside of our voices,” he said.

 

Balancing Federalism and Claims of Federal Control of Private Property

 

Rick Hills and Ilya Somin, two of the most respected Property Professors in the country, raise an interesting conflict as to whether the federal courts are the proper forum for the determination of state acquisitions utilizing the power of eminent domain.

Given this author, Alan Ackerman, as a Michigan and Florida practitioner, one should understand that given the Hathcock decision reversing Poletown and noted in Kelo leads this author to believe a position that the States may control property rights activities within the jurisdiction provides the stronger legal basis.

Realistically, the Fourteen Amendment was enacted to supply protection from state abuse. The abuse related to any rights of property, often decided in such cases as state mis-regulation of railroads in California in the 1880’s and extended out to the irrationality of Lochner years later.

The reality of the situation is one in which States clearly have an opportunity to self-regulate via constitutional amendment or legislative action. The potential to limit the Police Power to only non-economic activities is one which a state may retain. Ilya Somin provides a rational argument supporting the protection being one that is in the federal jurisdiction. However, this writer has a sense that federalism allows States to be the “test tubes” for activity in all the States because the Public Use is subservient to the Police Power because the police power is reserved to the States under the Reserved Powers Clause of the Tenth Amendment.   But possibly the right to property use is a federally protected right even though property regulation has always been within the exclusive province of the State.

The two articles are included this and the next blog posting.  Below is the Rick Hills discussion.  Ilya Somin’s will be in the next blog.

http://www.washingtontimes.com/news/2015/jul/29/celebrate-liberty-month-federal-protection-of-priv/print/

When governments regulate private property, there is always a risk of abuse and corruption.

When courts try to eliminate such governmental abuses, there is always the risk of judges creating clumsy, ill-fitting rules that make effective, publicly interested government impossible. There is no perfect way to eliminate either risk: The choice is always a matter of selecting the lesser of two evils.

Federal courts’ enforcement of federal constitutional doctrines to limit state and local governments’ power over land, however, is strong medicine, often more dangerous than the disease it purports to cure. When it comes to curbing abusive use of zoning and eminent domain, the best rule of thumb is to leave the solution to the states.

There is no doubt that state and local governments have, at best, a mixed record when it comes to controlling land. Critics who call for courts to curb governmental power frequently cite Poletown, the Detroit neighborhood condemned by the City of Detroit in 1981 to make room for a General Motors factory. Thousands of residents were displaced and churches and stores destroyed to cajole GM into creating 6,000 factory jobs that never materialized. More generally, there is always the risk that, due to inattentive voters, democratic processes will fail to protect private property from well-connected insiders who exploit public power for private gain.

But state and local political processes, while imperfect, also contain the resources to curb such abuses. Poletown is now a byword for eminent domain abuse. The Michigan Supreme Court, elected by Michigan voters, construed the state constitution to limit the use of eminent domain for economic development. Voters also amended their constitution in 2004 to impose even more stringent limits, and the Michigan legislature enacted statutory protections like awarding condemnees attorneys’ fees and requiring high evidentiary standards before land can be condemned to eliminate purported blight.”

 

Ohio Trial Courts Again Deal With Rights of Entry for Nexus

Nexus desires to survey property that the company desires to acquire. There is little choice but for the oil pipeline companies to move forward unless the companies know what kind of soils will be dealt with. Challenges of environmental hazards, especially wetlands, rivers and the like, make it mandatory for the pipeline companies to assess what effects will occur on the environment from the pipeline.

A number of Ohio trial courts have already granted temporary restraining orders in favor of the pipeline company. One very well can expect this to continue.

The real issue is whether compensation must be made as part of the entry. In many states, the requirement may be one in which the compensation estimate for the entry must be made prior to the filing of a complaint for entry.

 

http://fox8.com/2015/07/13/medina-county-homeowners-pack-courtroom-to-block-proposed-pipeline/

On Monday, attorneys for the gas company argued that Ohio law allows them to go onto private property to conduct surveys whether the property owners want them there or not. Medina County Prosecutor Dean Holman has already issued an opinion believing that the surveyors are committing criminal trespass if they enter property where they are not welcome. Attorneys for the project say that is not consistent with opinions in other courts across the state.

“We believe that under Ohio law we have the right to enter your property and it’s not a criminal trespass,” said attorney Jim Hughes.

Hughes is seeking an injunction against the property owners who are turning away surveyors for the project. He argued the company is not seeking to acquire property for the pipeline, only to survey the properties along the route where the pipeline is proposed for “native species, geological formations, cultural artifacts and environmental issues, such as wetlands,” said Hughes.

An attorney for property owners argued that they have rights too.

“A private property owner ought to be able to look at a gas company representative and decide whether they want to allow the survey or not and if I’m paying my mortgage payment and I’m paying my real estate taxes I would expect that I could say no I don’t want you to do this,” said Greg Huber.

Attorneys for the Nexus project also claim that the company will be irreparably harmed if the project is not completed by November 2017.

“That is a critical date, they will lose several million dollars per month that it is not online after 2017, their construction cost will go up and their reputation within the industry will be made,” argued Hughes.