Example of Highest and Best Use Analysis and Future Development

A matter that I resolved recently is a good example of how, in condemnation, just compensation must be determined based on the highest and best use of property, which would include considering the impact on the future development of vacant land.

Appraisers must evaluate the highest and best use of property. In an eminent domain case, the concept of highest and best use is summarized in Michigan Civil Jury Instruction 90.09, which reads “In deciding the market value of the subject property, you must base your decision on the highest and best use of the property. By ‘highest and best use’ we mean the most profitable and advantageous use the owner may make of the property even if the property is presently used for a different purpose or is vacant, so long as there is a market demand for such use.”

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Just Compensation Must Include Payment for the Larger Parcel

The impacts of a taking must evaluate both the actual property being taken and the impacts upon the larger parcel, which could include other legally described properties.

MCL 213.51 contains definitions that are applicable in a condemnation case. This includes the definition of parcel. “‘Parcel’ means an identifiable unit of land, whether physically contiguous or not, having substantially common beneficial ownership, all or part of which is being acquired, and treated as separate for valuation purposes.” MCL 213.51(g).

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New Developments on Nixon Wedding Barn Matter

I am representing Nixon Farms in their efforts to continue operating a seasonal event barn in Webster Township, which has resulted in news media coverage. 

I successfully obtained an order from the Washtenaw County Circuit Court reversing a Webster Township Zoning Board of Appeals decision that sought to preclude Nixon Farms from continuing operation of their seasonal event barn, which primarily serves as a venue for weddings. As a result, the Township amended the ordinance. Nixon replied by seeking a referendum to overturn that amendment. Now, the Township is amending their amendment in order to avoid that referendum. MLive has covered this controversy. It recently published an article discussing Webster Township’s the history of this controversy.

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Eminent Domain at the Oscars?

The movie Little Pink House focuses upon the battle over eminent domain in a landmark SCOTUS case.

In what may be a first, there is Oscars buzz for a movie focused on eminent domain. The “buzz” is not necessarily coming from the movie industry but was raised by conservative columnist George Will. However, any popular publicity is more than what normally exists.

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U.S. Fourth Circuit Court of Appeals Allows Citizens Groups’ Environmental Lawsuit to Proceed

South Carolina decision could become relevant to protecting the Great Lakes.

The Fourth Circuit Court of Appeals has jurisdiction over matters originating in Maryland, North and South Carolina, Virginia, and West Virginia. Last week, a divided panel allowed two citizen groups to proceed with a lawsuit seeking injunctive relief following a pipeline spill. In 2014, a Kinder Morgan pipeline ruptured in Belton, South Carolina. While the source of the rupture was repaired and most of the released gasoline was recaptured, the citizen groups allege that a plume of contamination was threatening wetlands, streams, and the Savannah River. The district court judge dismissed the lawsuit because the rupture had been repaired and there was no direct contamination of waterways. Two judges agreed that "nothing in the language of the CWA suggests that citizens are barred from seeking injunctive relief after a polluter has repaired the initial cause of the pollution.” A third judge dissented. The majority determined that pollution migrating through groundwater was a sufficient basis to bring an action under the federal Clean Water Act.

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Nexus Seeking Dewatering Agreements

When acquiring permanent easements, Nexus apparently did not analyze how it would dewater the trench and is requesting that owners sign supplemental agreements with little to no consideration.

I have communicated with a number of clients who I represented when Nexus Gas Transmission acquired pipeline easements. After agreeing to those easements, Nexus is asking some of my clients to sign new Dewatering Agreements.

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Agricultural Property Owner Group Formed in Coldwater

Farm owners have banded together in response to METC Coldwater capital project.

Michigan Electrical Transmission Company or METC is a subsidiary of ITC that owns transmission facilities on the western side of Michigan. METC is embarking on a new capital project in Coldwater, Michigan. This project will entail acquiring easements over primarily agricultural land to install new transmission lines. I have been retained by a significant number of property impacted owners.

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Owners Guide to Understanding the Definition of Parcel

Just compensation includes not just the impact to the property actually taken but expands to include impacts to the larger parcel.

Michigan law recognizes an expansive approach to evaluating just compensation. For example, if only a portion of a property is taken, just compensation takes into account damages to the remainder of that property. This jury instruction summarizes damage to the remainder issues, which are typically the most heavily contested matter in a condemnation case.

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ITC Appraisers Active on Macomb Orchard Trail

ITC is preparing appraisals that will serve as good faith offers for the next phase of takings along the Macomb Orchard Trail.

ITC has been acquiring vegetation management easements along the Adams Spokane transmission line in Oakland and Macomb Counties for a couple years. The most recent batch of cases involved takings from the Breckenridge Subdivision in Washington Township. ITC is now moving farther along the line, including into Shelby Township. One of ITC’s regular appraisers has sent letters to property owners seeking to inspect their properties for purposes of his appraisal.

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Oakland County Road Commission Filing New Condemnations

As part of its efforts to widen Baldwin Road, the Road Commission is filing new condemnation lawsuits.

The Board of County Road Commissioners of Oakland County is undertaking a project to widen Baldwin Road in Orion Township and add round-a-bouts. In order to implement that project, the Road Commission has been filing new condemnation lawsuits in Oakland County Circuit Court to obtain the additional right of way.

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Yet Another ET Rover Pipeline Accident

The ET Rover Pipeline through Michigan, Ohio, West Virginia, and Pennsylvania suffers yet another environmental accident.

I have documented past problems with the construction of the ET Rover pipeline. Last week, yet another incident occurred. Rover spilled 146,000 gallons of industrial waste near the Tuscarawas River in Ohio. At least this spill does not involve as much industrial waste as the 2,000,000 gallons previously spilled in a wetland near the same river.

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President’s Infrastructure Proposal Delayed

President’s Trump’s campaign promise to implement massive infrastructure spending likely delayed until after the State of the Union address.

While campaigning, President Trump promised to both expedite the processes relating to federal approval of infrastructure spending and massively increase infrastructure spending. As this article confirms, the plan has been yet to be provided. Trump’s two main goals for the bill are to inject $1 trillion worth of overall investment into the nation’s infrastructure and bring down the lengthy construction permitting process to two years. White House officials told a bipartisan group of lawmakers on Capitol Hill that the proposal could now be released after Trump’s inaugural State of the Union address on January 30, 2018.

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State Board Attacks Snyder Enbridge Deal

The Michigan Pipeline Safety Advisory Board adopted a resolution seeking temporary closure of Enbridge Line 5 pipeline.

I recently posted about a deal made by Governor Snyder and Enbridge. 

Recently, the Michigan Pipeline Safety Advisory Board adopted a resolution seeking temporary closure of the Line 5 pipeline. A majority of the board members abstained from the vote, potentially for political reasons, but allowed the resolution to pass. 

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MDOT Planning To Remove I-375 In Detroit. If History Were Different, Could A Proposal To Build It Be Challenged?

I take a run at historical fiction in light of MDOT’s plans to remove I-375 and in the process discuss necessity and public use concepts.

The Michigan Department of Transportation (MDOT) recently announced that it is proceeding with its plan to remove I-375, which is a spur from I-75 south into downtown Detroit. MDOT intends to create a surface street in its place that includes green space.

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Beware of the Right of Way Agent

Let’s face it. Sometimes right of way agents can use questionable techniques. Here are some tactics to avoid.

I open this post with a disclaimer. All types of people can be confronted with a condemnation project. Their experience with legal processes, sophistication relating to real estate transactions or contracts, their ability to separate the emotional impact of the (very real) intrusion created by a condemnation from the applicable legal standards, and even their candor can vary widely. Perhaps some of the stories that I hear about the conduct of right of way agents are the product of misunderstanding or exaggeration. But the stories are frequent, shocking, and offensive. And many of the stories are supported by documents or my own observations.

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ITC’s Expanded Coldwater Project Implicates Special Just Compensation Issues for Farmers

ITC is adding a new phase to its Coldwater Capital Project, impacting area farmers.

This post describes ITC’s capital project. I have learned that ITC is seeking to expand the project and take easements from agricultural properties not shown in their earlier plans.

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Spill in North Dakota and Explosion in Orion Township Illustrates the Differences Between the Dangers of Petroleum and Natural Pipelines

210,000 gallons of crude oil leaked from Keystone Pipeline in South Dakota threatens groundwater in the area while a pipeline explosion in OrionTownship left a huge crater.

In order to evaluate the impact of a new pipeline, it is necessary to know what type of material will be transported through it.

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Movement on Controversial Line 5 Pipeline

Enbridge agrees to replace a portion of the line and the State is evaluating additional remedies.

The Enbridge Line 5 pipeline under the Straits of Mackinac has engendered a great deal of controversy. For example, this blog post details earlier efforts to close the line due to the fear that it could rupture due to its age, causing a tremendous impact upon the Great Lakes.

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Consumers Filing Saginaw Lawsuits

Consumers Power has filed multiple lawsuits using eminent domain.

I previously wrote Consumers Energy to Reconstruct Line 2800 Pipeline, a 24" Natural Gas Pipeline describing a new pipeline being constructed by Consumers. Consumers have filed multiple lawsuits in Saginaw County exercising eminent domain to acquire rights for this pipeline.

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ITC Moving North Along Macomb Orchard Trail

ITC seeking more new vegetation management easements in Washington Township.

I am currently representing 25 property owners in the Breckenridge Subdivision, houses on Yorkshire and Berkshire in Washington Township. These houses back to the Macomb Orchard Trail. I previously represented owners further south on the Trail.

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