Category: Uncategorized

River Raisin Battlefield Eminent Domain Process Raises The Taking Question

In some of its acquisitions, the Federal government will take a position that it will not buy property through eminent domain. This creates a “waiting” game. Examples are the expansion of the military base in Battle Creek and the River Raisin Battlefield Park upgrade to one which owners will be left fallow while others are purchased because people desire to sell. This raises an issue of whether no expropriation process creates a “blight by project” result. This is somewhat akin to the old urban renewal inverse condemnations, where the ‘slow take’ destroys the community. The activity is illustrated in Cleveland v Carcione and Detroit v Cassese 376 Mich. 311, 136 N.W.2d 896 (1965). One can expect the issue of federal “delayed” acquisitions and their effect on the remaining properties to never be challenged only because the activity is so dispersed throughout the country.

When does originalism in the Fouthteeth Amendment start?

The ‘Originalism’ of what was contemplated by the Constitutional scriveners was at least modified by the Fourteenth Amendment with regard to State activity.  The Karl Spence comment written for American Greatness describes how an originalist court would have responded to Kelo by probably not reviewing the case.  However, the originalist court would have to deal with a Fourteenth Amendment.  The question is one of whether the Fourteenth Amendment intended to apply to Public Use and Just Compensation clauses to Stated activity.

The argument takes one back to a determination of whether there are “private property rights” which are placed on a different place than limitations created by the refusal to allow government interference with other personal rights and liberties.  Are the First Amendment Freedoms so far different from general protections contemplated? Is there a Right to Privacy which shall act as a  limitation on State activity?

In any event, the Spence note offers an interesting and thoughtful perspective.

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?”