Category: Ohio Eminent Domain

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.

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.

Can One Challenge The Army Corps of Engineers in Ottawa Township, Putnam County, Ohio?

A number of members of the Ottawa Township, Ohio community are seeking to modify a proposed flood control measure to minimize damaged property. We all recognize that the Corps of Engineers has almost unfettered discretion to do as the Corps desires when it comes to the waterways. This is part of the original delegation of the power to control the waterways which is part of our national Constitution with regard to commerce and navigability. Yet, it is hard to imagine that if a better plan can be shown than that proposed by the Corps, the Corps would not at least take a long look at an alternative proposal which creates less harm to the community. This may be one of the rare circumstances where even the federal courts would review the process. Please note the decision of the Federal Court in Wisconsin this blog wrote about this week.

“Why can’t we have a plan for the entire watershed, that takes into account other communities and the rural community?” Siefker said. “Instead, we just have plans at these two pinch points, Findlay and Ottawa. Of course, they want a diversion channel to route the high water quickly around their communities, but what about us downstream? We need to work together on a plan that benefits everyone.”

The corps’ plan for Findlay includes a 9.4-mile Eagle Creek diversion channel. Eagle Creek drains into the Blanchard River at Findlay, and the intent of the diversion channel is to route some of the creek’s floodwater away from the city, and slow its re-entry into the river.

While construction of any flood-control measure in Findlay isn’t expected until the year 2022, construction in Ottawa could begin soon.

The Maumee Watershed Conservancy District voted in August 2014 to take over leadership of Ottawa’s flood-control project at the request of both Ottawa Council and the Blanchard River Flood Mitigation Coalition. The coalition was formed in 2007 to find solutions to flooding in Ottawa .

The conservancy district has the authority of eminent domain, which means it can take property from landowners for a public use. Landowners must be paid a fair price for the property taken.

The conservancy district will most likely manage the construction of flood-control projects for Findlay, too.”



To Fight or Not to Fight: The Pipeline

The Toledo Blade offers an interesting conflict on the pipeline challenges. Without question, owners do not want the pipelines. Equally without question, the owners do not want to “give” up their property for nothing. Michael Braunstein, a noted and respected lawyer in Ohio, maintains that it is important that people obtain lawyers to fight for their compensation. On the other hand, Terry Lodge, a Toledo attorney apparently working with the activist groups in opposition stated first, a challenge should be made to the process. Realistically, what needs to be done by those who desire change is they “get it together” and figure out how to establish a reasonable basis in opposition to the pipeline with the Federal Energy Regulatory Commission. This is a difficult process indeed. Yet, without going to FERC, there is no reason to claim no one is objecting to the pipeline because courts provide almost complete deference to FERC decisions.

“One of them, Michael Braunstein, of Goldman & Braunstein LLP in Columbus, told The Blade after meeting with 50 residents in Fremont on April 15 he believes a high percentage of landowners — probably 70 percent — usually accept a pipeline company’s initial offer, while the rest hire lawyers. Mr. Braunstein’s basic advice to those in the audience was to not sign anything — especially easement rights — before first consulting an attorney, whether it’s someone in his firm or another one. Once a landowner signs a right-of-way easement, negotiating compensation for losses becomes harder, he said. Pipeline companies should be willing to pay for insurance and all damages unique to one’s property, from any water pollution to livestock losses in event of a leak or explosion. In many cases, pipelines should be laid near fences instead of across the middle of land, he said. Landowners should look for lawyers who specialize in eminent domain, the proceeding under which pipeline companies may seize rights of way when landowners balk at signing easements, said Mr. Braunstein, who has specialized in that area for 20 years. “The recent development of Ohio’s shale-gas deposits has spawned thousands of miles of pipelines to carry the gas produced by shale fracking. It has also spawned thousands of conflicts between the pipeline companies and the landowners in their way,” according to comments his law firm filed March 20 with FERC. “Without representative intervention early in the FERC process, Ohio landowners face permanent and irreparable harm.” Terry Lodge, a Toledo attorney working with activist groups, said the simple advice of getting a lawyer needs to be examined too, because that’s “built on the perception that there’s nothing that can be done to stop an inevitable pipeline. “That sweeping concession locks down the route and commits the project to be completed,” Mr. Lodge said. Paul Wohlfarth, a CORN member, said the group has advised landowners along the route to hold off on legal advice for the time being. Read more at


Underground Propane Gas Storage Expansion In New York


The Finger Lakes area in New York is a beautiful and pristine community. Yet, gas storage facilities already existed and have been utilized as gas storage for over 60 years in the area. The expansion creates a hostile atmosphere to the proponents of propane gas storage in the area; i.e. the storage companies.

“The Finger Lakes region has been home to multiple propane storage facilities for more than 60 years. These facilities have operated safely and strengthened local economies, without jeopardizing communities or other growing industries,” said Robert Phillips, chairman and CEO of Crestwood Midstream.

“Local residents and businesses understand the facts about this shovel-ready project and the real benefits it will provide their communities,” he said.

The company is encouraged by the positions expressed by state Department of Environmental Conservation staff at an issues conference held recently in Horseheads, Phillips said.

“Based on expert analysis, science and historical data, DEC staff made clear that its review of this project has been extremely thorough, and that there are no issues requiring adjudication,” he said.

The Houston-based company wants to build and operate a new underground facility for the storage and distribution of propane and butane in salt caverns on a portion of its 576-acre site in the Town of Reading.”

Can Chrysler Expand in Toledo Without Eminent Domain

Prior to the post-Kelo limitation on eminent domain proceedings for private benefit, the Jeep Plant could have continued an expansion contemplated years ago through eminent domain. However, the limitations set by the Ohio Court decisions has required an alternative method of obtaining property. This is called the market.

In all likelihood, Jeep will do what Marathon did in Detroit, quite simply make offers for far more than the properties may otherwise be worth, with an understanding that all parties will sell at the same set per unit price.

It is suggested that Chrysler looked to the Marathon procedure in order to proceed with a necessary expansion.

“That seems to be a pervasive feeling through the neighborhood. One longtime resident said moving isn’t desirable, but the resident doesn’t want to end up having the last house on the block. And most of the neighbors, the resident said, will probably go.

Todd Scharff may not have a choice. Mr. Scharff rents one of the 14 homes. As soon as he received the city’s letter, he started looking for a new place to live.

“I’m sure it’ll happen,” he said.“They’ve been digging through back there for a while. I’m guessing they’re probably going to end up doing the same thing here.”

Mr. Scharff believes his landlord would sell if he gets an offer.”


Is FERC Serious in Investigating Alternative Routes?

FERC has ordered Nexus to “investigate” whether a route can be provided which will not go through the more densely populated areas such as Green, Ohio. However, the notion that it is to be “investigated” does not give solace if Nexus simply determines that the present route is the only appropriate route balancing the expenses and potential risks. One must wait to determine whether FERC will really move in a fashion that protects the individual property owners, something that certainly has not occurred to date.

The company has been looking at a possible southern alternative route of its own, although no details have been released.

The Federal Energy Regulatory Commission, which approves such pipeline projects, filed its directive to the company in a memo Tuesday — a day after Green pitched the alternative route in a 38-page filing with the agency.

When FERC will make its decision about what route it will approve has not been determined.

The Nexus pipeline — intended to move natural gas from the Utica Shale region to market — is generating a “large volume of public comments,” FERC said in its memo.

Green officials called the current 93.4-mile pipeline route through the Akron-Canton area “hastily drawn and ill-conceived with no respect to the human and environmental concerns.” Norton and Planning Director Wayne Wiethe signed the city’s filing.