Category: Uncategorized

Walking Into a Storm

The Peters Township School Board and the local community determined it would be best to acquire a former country club site which has been recently sold. Apparently, the intent, at least in part, is to avoid further development of the community.

It is just this development which creates value in the property. Without question, the purchaser has spent substantial time in determining the property could be bought for 8.7 million dollars and profitably developed. The School Board probably assumes it will simply write a check for 8.7 million dollars and say goodbye to all. If so, the District Board and the Community are dreaming, in what will likely result as a very bad dream.

“The township has been looking at the site as a possible location for recreation facilities such as a pool. The school district has said the property would be used for school facilities.

Peters Council is scheduled to vote on Monday.

The resolution states that by eminent domain code, the school district is “authorized and empowered” to acquire by condemnation any lands or buildings for proper school purposes.

The school board and council made a joint offer on the property located along East McMurray Road in June, but it was rejected.

In late June, the property was sold to Pinehurst Partners, LLC at a price of $8.7 million, according to the recorder of deeds.”

Click here to read more.

What is the Proper Authority of a Public Service Commission in Route Determinations?

Public Service Commissions, called Public Utilities Commissions in some States, have the right to determine and approve pipeline.

In South Dakota, a dissenting commissioner complained that the pipe was too close to the growth area of a community.

One must wonder whether this is within the discretion of the commissioner. Realistically, one must first look to whether the Commission has the authority to limit a proposed pipeline premised upon issues such as the routing, size of pipeline and size of easement. Each state has its own specific Constitutional and statutory delegation, so the decision in South Dakota may have been appropriate, but only if authorized by the law of the


”Commissioner Gary Hanson expressed disappointment in the corporation, however. He voted against the pipeline, saying that the company failed to meet its burden to build outside the immediate growth area of Harrisburg.

A substitute motion to deny the permit based on that issue failed 2-1.

The former Sioux Falls mayor told the commission that future Harrisburg residents will wonder why the PUC approved a pipeline one-quarter mile from the city’s growth area and along the route of a high-voltage power line when the company could change the route for “pennies on the dollar.”

Do Toll Roads Have Priority Over Railroads?

Canadian Pacific Railroad is taking on the privately owned Illinois Tollway. Because of the changes in the interchange system, the authority now seeks to acquire, by eminent domain, major portions of a Canadian Pacific Chicago rail hub.

Traffic in the Chicago area is all important. At the same time, priority and respect should be provided to an important federally regulated transportation operation such as this railway yard.

If done right, Canadian Pacific will be victorious. The Tollway system would be wise to find another replacement now, prior to completion of the lengthy and potentially unsuccessful approval process.

The project has been designed a “Project of National and Regional Significance” by federal transportation legislation, the Tollway said.

Canadian Pacific’s beef has arisen out of the Tollway’s plans for the north-south connector route between the Jane Addams Memorial Tollway (I-90) and the Tri-State Tollway (I-294.) Under the plans posted on the Tollway’s website, the portion of the proposed new roadway running south from Irving Park Road to the Tri-State would include a new interchange at the new highway’s junction with Franklin Avenue/Green Street in Bensenville.

And that route would not only take the new highway right through Canadian Pacific’s Chicago rail hub, but plant the new interchange right at the southern end of the more than 300-acre rail yard, the railroad said.

Can an Ohio City Acquire Property Outside the City Limits by Eminent Domain?

Perrysburg, Ohio is acquiring property in Middleton Township in order to “improve” Fort Meigs Road. Two issues are involved. First, the acquisition is for more than simply roadway, but also walkways, which was not specifically included into the road delegation of the statute. The question then becomes one of whether the road statute is intended to be for “transportation purposes,” meaning more than simply roads can be acquired.

A second issue raised in the Ohio article is the acquisition of property outside the city limits. Under almost every State Constitution, property outside city limits can be acquired if there is a Constitutional provision or State statute delegating a governmental body the power to acquire property outside the community limits. See Grosse Ile v. Grosse Ile Bridge Company, 722 NW2d 220 (2006).

First, Perrysburg lacks authority to seize property in Middleton Township. But even if it did because it’s a road project, it can’t take land for sidewalks. Further, Perrysburg has no authority to use the quick-take process in Middleton Township, and, regardless, quick-take doesn’t apply to sidewalks — either inside or outside the city limits.

“They can’t take land in the township for any reason,” Thompson said, “but particularly for amenities like a sidewalk and bike path,” citing several court cases in which quick-takes for drainage ditches and sewer lines were ruled illegal.

This week, the court granted a temporary order saying the city couldn’t take immediate possession of the properties or begin construction until certain other issues are determined.

But the land grab isn’t the only issue.

Homeowners wonder why the widening project is limited to their side of the street; the other side contains a man-made drainage ditch and farm land.

Todd Grayson, the lone Perrysburg City Council member to vote against the eminent domain proceedings, said it boils down to cost.

“There’s no debate about whether or not the road needs to be widened,” he said. “The question is: Do you pay a million dollars more to expand on the ditch/farm field side or do you go to the property owners’ side and expand on their property?”

Virginia Waldo Firm Challenges Survey Rights

The outstanding Virginia law firm of Waldo & Lyle had a number of attorneys actively objecting to the Atlantic Coast Pipeline Project.

Attorney Josh Baker raised the issue of the Virginia Constitution being “supreme law.” Realistically, this blogger would disagree with the notion that the Virginia law supersedes the Constitutional right delegated through the Interstate Commerce Clause to the Federal Energy Regulatory Commission. Yet, this raises the second issue of what rights belong to the utility, if any, until FERC approval is provided. On the flip side, it is unlikely that FERC approval would be provided unless there is certainty as to the future route of the line.

Jeremy Hopkins, another Waldo & Lyle lawyer, raises a different, but even more perplexing issue. The utility should not have an unfettered right to enter property at a time and place of its own choosing. Rather, adequate notice is a basic part of the Constitutional process. If anything, the Police Power would maintain that notice must be given in order to protect the general safety of the public.

Norfolk attorney Josh Baker told Ricketts that a 2012 amendment to the Virginia Constitution voted on by Virginia residents made private property ownership a “fundamental” right. He also argued that a state law passed in 2004 that gives natural gas companies the right to enter property does not hold up under a strict scrutiny test. The 2004 law does provide that natural gas companies can enter property without permission once they have notified the property owner in writing and specified the date of the visit. Baker argued that the law is unconstitutional

Baker said a compelling government intent must be established, and as of yet, there has been no federal permit granted for the Atlantic Coast Pipeline project, adding that the Virginia Constitution “is the supreme law.”

Jeremy Hopkins, another Norfolk attorney representing property owners, said the letter sent to the landowners speaks of a date surveyors would come, but also speaks of other potential visits to the property. He said property owners need to be aware of when someone is coming on their land. Hopkins said the notice is necessary because property owners could be operating heavy equipment and doing other tasks.

An Outstanding Tax Consequences of Condemnation Primer

Katherine Contreras of the Nossaman eminent domain firm in California has provided an up-to-date analysis of the tax effects created by condemnation gain or loss.

The Nossaman firm is an extremely active owner’s side eminent domain firm.

The refresher provided by Ms. Contreras offers an outstanding initial analysis. One should still meet with a tax advisor for the specific situation, but this article offers an outstanding analysis which will be generally applicable.

“Most of us are at least vaguely familiar with the tax on gains from the sale of property.  Many of us know that when property is sold voluntarily and the funds re-invested, the gain may be deferred under Internal Revenue Code section 1031.  What is sometimes overlooked is the taxability of gains when property is sold involuntarily, i.e., condemned.  As we posted several years ago, Internal Revenue Code section 1033 contemplates just such a situation, and provides some advantages over a section 1031 exchange: An owner has more time to re-invest and may actually hold the proceeds pending that investment – no intermediary needed.  (Unlike some other Code provisions, sections 1031 and 1033 do not eliminate gain; rather, they defer gain by allowing the taxpayer to move “built-in” gain from an old property to a new property.)