Category: Ohio Eminent Domain

THE UPCOMING KNICK DECISION

The Knick United States Supreme Court decision is gleefully awaited by those hoping to modify the misbehavior allowed because lower courts simply will not appropriately review claims which had the potential to be in the state court, but claims, even when valid, would never have received an award. After all, one of the justices asked the lawyer whether this would cause an inundation of land use cases in the Federal court system.

Thankfully, this scrivener was not presenting the argument.  One has to wonder whether the notions of both Just Compensation and Due Process were ever in the ambit of the Justices’ question.  Should we simply not have litigation to resolve our constitutionally protected rights?

The argument that there will be a proliferation of litigation simply does not make sense.  More likely, a recognition that there is a responsibility and financial liability will provide governments with the decision of whether a governmental unit should proceed in taking away an individual’s basic constitutional rights to property!

Pipeline Challenge Goes down a Beaten (and Unsuccessful) Path

Owners in Medina, Ohio are attempting to stop Nexus surveys of the proposed properties to be taken.

The decision to acquire is one which only is made after the surveys are made and the determination of the best route is completed. One of the problems is that the determination of best route may not necessarily be what is most environmentally sensitive or least expensive, but rather what the utility, in its sole discretion, determines as the “best route”.

The challenge being made by the owners is similar to what was made and rejected in California only last week. See Alan Ackerman, Important Right of Entry Statute Found Constitutional, National Eminent Domain, July 2016.

“MEDINA, Ohio — Lawyers for a proposed natural gas pipeline argued in court that surveyors should be allowed on the land of more than 32 Medina county property owners to survey endangered bats, wetlands and cultural or historical sites along the pipeline’s 255-mile path.

Residents oppose any intrusion by Nexus Gas Transmission on their land.

Medina County Common Pleas Court Judge Christopher Collier heard part of Nexus’ request for a court order to allow the surveys Wednesday morning. The hearing will continue Thursday.

In October, Collier ruled that Nexus workers should be permitted onto the property of homeowners to perform surveys for the pipeline. That ruling has been appealed to the U.S. Ninth District Court of Appeals, which has not yet issued a ruling.

“These people have received letters saying they must sign papers to allow the (land) survey by Nexus or they (Nexus) will simply enter the property on certain dates,” said Greg Huber, lawyer for the landowners. “Private property owners have the right to tell someone they cannot enter their property. Nexus representatives come to their doors, and while one man talks, the other man stands there carrying a sidearm.”

Nexus spokesman Adam Parker responded by email, “Occasionally, Nexus employs off-duty police officers at its own expense to accompany its survey crews in order to ensure their safety and security.”

Residents in court Wednesday said that the request to allow people on their land to look for bats, wetlands and historical sites was a way of getting around homeowners’ refusal to let them survey their property for the gas line.

“I think that they are using the bat issue as a backdoor way of getting onto our land so they can survey it for the pipeline,” said Jacqueline Pradu-Fecca, of Medina.”

Click here to read more.

Hancock County, Ohio Flood Control Issues

Hancock County and the federal government cannot come to terms on the construction of flood control in the County. Apparently, the price of the project has now gone up, precipitating the federal government to state that there is no economic enhancement in the project.

Realistically, the State of Ohio desires the project to move forward so that the area is removed in order to construction a larger retention will provide fill for the future I-75/Ohio 15 interchange. This would provide the ODOT with a considerable cost savings. At the same time, the cost of the project has increased so dramatically so the government wonders whether a more reasonable project may be obtained without necessarily benefitting the Department of Transportation, but creating a more cost effective approach.

In the meantime, the owners about to be acquired for this project are left in this uncertain atmosphere of not knowing what to do. Development and normal business operations are inhibited if not prohibited.

http://thecourier.com/local-news/2016/05/03/officials-channel-plans-moving-ahead/

“Corps reviewers found that the estimated cost of the Eagle Creek diversion channel, which had been set at $60.5 million, was too low, and increased the estimate to $80 million. The added expense reduced the benefit-to-cost ratio of the project enough that, as currently proposed, the corps no longer considers the plan economically feasible.

A plan proposed by Findlay Mayor Lydia Mihalik to the county commissioners in March would abandon the chief’s report and federal funding, and instead rely on local and state funding to build the channel.”

 

 

 

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

Issues of Immediate Eminent Domain Seizure Without Appraisals in Ohio

Does Ohio provide the “quick take” provisions of the Ohio eminent domain statutory framework with the ability to acquire property with no real offer being made? At this time, the governmental agency can simply acquire by filing any estimate and proceeding to a condemnation.

Most jurisdictions require an offer of not less than an appraised value prior to the acquisition of property. Generally this is followed by the Uniform Relocation and Assistance Act. In other words, if there is federal funding, the state is first to obtain an appraisal and make an offer of not less than the appraised value.

On the local level, the Uniform Relocation Act is not always required to be followed. Given this, many jurisdictions acquire without any estimate of the amount of compensation, effecting itself of a pre-judgment garnishment.   This blogger wrote about the constitutionality of the quick take almost twenty years ago in the University of Detroit Journal of Urban Law, concluding that a good faith effort premised on reasonable analysis of Just Compensation was enough to comply with the Constitutional mandate.

http://watchdog.org/243566/ohio-eminent-domain-borders/

“And I disagree,” Grayson said. “When your justification is ‘it’s cheaper,’ that’s not a legal reason for taking people’s property.”

ODOT’s only role, says Mike Gramza, ODOT District 2 administrator, is to make sure all federal requirements are followed; 80 percent of the funding is from the federal government. Perrysburg is handling all design work and paying the 20 percent local match.

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.”