ITC/ANN ARBOR EASEMENTS CLARIFIED TO REDUCE IMPACT ON PROPERTIES

In order to avoid a challenge to necessity, ITC agreed to including clarifications to its easement form in the court order awarding title and possession of it.

In a condemnation case, a property owner enjoys the right to challenge whether the property rights being acquired are beyond that which is necessary to implement the project. This blog post describes the legal standards relating to such a challenge.

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ANN ARBOR CITY COUNCIL REJECTS REZONING REQUEST

I successfully appeared on behalf of the property owners opposing a City-initiated rezoning of their property, presenting arguments establishing that such a rezoning would have constituted a taking. 

On Monday, April 15, 2019, the City of Ann Arbor’s City Council was asked to review a proposed rezoning of a portion of S. Ashley Street from a commercial zoning district to a multi-family zoning district. The City of Ann Arbor’s professional staff had recommended against such a rezoning.

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Controversy Surrounds ET Pipeline in Pennsylvania

A Pennsylvania pipeline may have received special political favors to expedite a pipeline project that is being criminally investigated and that has had numerous environmental issues.

According to this Guardian article, Pennsylvania Governor Tom Wolf’s role in approving the Mariner East 2 natural gas liquids pipeline through southern Pennsylvania is being questioned. The pipeline “sparked growing outrage” because “it has caused roughly 140 documented industrial waste spills into wetlands and waterways, destroying numerous residential water wells, and opening large sinkholes just steps from residents’ homes.”

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Would the Proposed Dredging of the Grand River Require Acquisition of Property Rights from Adjacent Owners?

This post is about questions rather than answers, but a proposed dredging project has me wondering about the property rights of adjacent owners.

A proposal has been touted seeking to dredge 23 miles of the Grand River, from Eastmanville Township to Grand Rapids, to allow powerboats to travel from Grand Rapids to Lake Michigan. The Grand River travels through Ottawa County, including Spring Lake, Tallmadge, Allendale, and Georgetown Townships as well as through Wyoming.

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Michigan Court of Appeals Confirms that Agencies Must Strictly Comply with Procedural Requirements

In a published decision, the Court of Appeals dismissed a condemnation for lack of jurisdiction because the agency failed to make a proper good faith offer that included all owners.

The Michigan Court of Appeals issued its opinion in Board of County Road Commissioners for the County of Washtenaw v Shankle, et al. 

In Shankle, the issue was whether the Road Commission had properly invoked the jurisdiction of the trial court. The trial court had declined to dismiss the lawsuit for lack of jurisdiction, finding that the procedures were not “materially defective.” 

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Oakland County Planning Airport Expansion

The potential expansion of Oakland/Southwest Airport in New Hudson will result in removal of several homes and acquisition of additional avigation easements.

Oakland County owns the Oakland/Southwest Airport in the southwest corner of Milford and Pontiac Trail Roads in New Hudson. Homes exist to the east on Milford Road and Bonne Terre Street and to the west on Annah Drive.

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SCOTUS Limits Endangered Species Habitat Designations and Mandates Judicial Review of Administrative Decisions

The United States Supreme Court ruled in favor of a property owner against the United States Fish and Wildlife Service.

On November 27, 2018, SCOTUS issued Weyerhaeuser Company v. United States Fish and Wildlife Service, 586 U.S. ___ (2018). 

Fish and Wildlife Service administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior. The Service designated the dusky gopher frog as an endangered species in 2001. As part of the Act, the habitat of the species was required to be identified. The Service designated over 1,500 acres of private property owned by a lumber company as the habitat, precluding economic use of the property. In doing so, the Service was required to evaluate the economic impact of its decision.

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Beware the Eminent Domain Bait and Switch

Two recent cases illustrate the dangers of not carefully reviewing good faith offers and appraisals.

This year, I concluded a utility taking against a commercial property where the real estate appraiser disregarded Michigan law and made an assumption that allowed him to disregard substantial eminent domain claims. In that case, the agency sought to acquire an easement that would have resulted in significant just compensation claims stemming from zoning compliance issues. While an agency is able to obtain a “supervariance” to eliminate zoning noncompliance issues (this blog post explains supervariances), no such variance had been obtained. There was no basis for the appraiser to assume the truth of his assumption. While the appraiser complied with his statutory obligations by identifying the assumption in his report, this was not something that a layperson would have been likely to understand. If the property owner had reviewed the appraisal without noticing or understanding the impact of the taking and relied upon it to accept the good faith offer, that owner would not have been fully compensated.

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ITC Issuing GFOs in Ann Arbor Area

ITC has issued good faith offers to acquire new capital project rights for properties in the Ann Arbor area, including in Pittsfield Township.

ITC intends to construct a new capital line in the Ann Arbor area. I am currently representing clients in Pittsfield Township and the City of Ann Arbor. 

An agency must issue a good faith offer prior to filing suit. ITC first issued good faith offers in Pittsfield Township and then issued offers in Ann Arbor. I expect lawsuits to be filed imminently.

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Another Pipeline Explosion

An Enbridge natural gas pipeline in British Columbia exploded, resulting in natural gas rationing in the region.

I have handled many eminent domain matters involving natural gas pipelines. Generally speaking, natural gas pipelines can be dangerous because a malfunction can result in an explosion. Unfortunately, these types of explosions are all too common. This article discusses such an explosion in Canada.

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ITC Settling Cases in Macomb and Wayne Counties

ITC and my clients in Macomb and Wayne Counties have settled vegetation management easement cases relating to their homes.

ITC has spent several years expanding their vegetation management easement rights, meaning their right to cut down trees and other vegetation within expanded distances from their existing transmission lines.

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ITC Issuing Good Faith Offers and Suing in Macomb County

ITC is pursuing new vegetation management easement cases, primarily in Macomb County.

ITC has spent several years expanding their vegetation management easement rights, meaning their right to cut down trees and other vegetation within expanded distances from their existing transmission lines.

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Enbridge and Governor Snyder Reach Agreement Regarding Replacing Controversial Line 5 Pipeline.

A deal has been struck that will result in the Line 5 pipeline through the Straits of Mackinac remaining in operation while a replacement tunnel is built.

There has been significant controversy throughout the state relating to the Enbridge Line 5 Pipeline that crosses the Straits of Mackinac. Many environmental protesters believe that the pipeline should be shut down because its age and condition threaten the integrity of the Great Lakes.

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METC’s Filing of Coldwater Condemnation Suits Reflect the Benefits of Retaining Counsel Early in the Process

As a result of my pre-suit negotiations, court filings by METC, an entity related to ITC, include substantively modified easements that are less onerous on property owners.

I advocate that property owners retain legal counsel as early as possible in the acquisition process and that those owners join a group of similarly minded owners with one attorney in order to leverage their negotiating power. A group of owners of agricultural property owners in the Coldwater area did just that and the benefits of having done so are evident from recent court filings.

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Controversial Tree Issue in Oakland County Illustrates the Value of Trees to Residential Homes

Many communities in southern Oakland County are known for their tree-canopied residential streets and plans to trim or remove those trees have upset property owners.

Many of the eminent domain matters that I handle involve removal of trees. These situations include the acquisition of avigation easements for airports, underground pipelines, electrical transmission lines, and road projects. Avigation easements seek removal of trees that could impact flight paths. Underground pipelines are inspected from the air, requiring clear views from above, or could be damaged by root growth. Trees touching electrical transmission lines or that could fall into them are dangerous and could cause power outages. Road work can result in the removal of trees lining the street and creating an attractive canopy.

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New Airport Takings in Nile

City of Niles is acquiring avigation easements to support its airport.

The City of Niles has issued the first phase of good faith offers to acquire avigation easements from adjacent owners. “Avigation” means navigation of aircraft.

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ITC/METC About to Issue Good Faith Offers in Coldwater

ITC, through its affiliated entity METC, has published an advertisement on the Coldwater Daily Reporter seeking to confirm the identity of potential property owners in Girard and Union Townships as a prelude to finalizing their good faith offers.

A condemning authority is obligated to include all property owners in a good faith offer and condemnation lawsuit. Owner is a defined term under the Uniform Condemnation Procedures Act. “‘Owner’ means a person, fiduciary, partnership, association, corporation, or a governmental unit or agency having an estate, title, or interest, including beneficial, possessory, and security interest, in a property sought to be condemned.” MCL 213.51.

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Michigan Farm Bureau Covers Wedding Barn Dispute

The MFB published a lengthy article discussing my client Ryan Nixon’s ongoing dispute with Webster Township to continue his wedding barn operation.

This link is an article published by the Michigan Farm Bureau discusses Webster Township’s ongoing efforts to shut down my client Ryan Nixon’s wedding barn operation, efforts that I have prevented to date. It also discusses the petition and referendum process that is the subject of this blog post.

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ITC making new offers along Macomb Orchard trail

New takings are on their way in Macomb County Circuit Court for additional properties along the Macomb Orchard Trail on the Adams Spokane Line.

I have represented many property owners in vegetative management taking cases filed by ITC in Macomb, Oakland, Wayne, Lapeer, and Washtenaw counties. I am in the process of representing 25 property owners in the Breckenridge subdivision of Washington Township. In addition, I have been retained by other property owners who are in the process of being condemned.

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“Supervariances” Can Mitigate Just Compensation Claims

The UCPA allows agencies to obtain “supervariances” that run with the land to mitigate the impacts of eminent domain takings.

Takings can often create impacts on the zoning compliance of improved properties or limit the ability to develop vacant land. “If the acquisition of a portion of a parcel of property actually needed by an agency would leave the remainder of the parcel in nonconformity with a zoning ordinance, the agency, before or after the acquisition, may apply for a zoning variance for the remainder of the parcel.” MCL 213.54(2). Unlike other variances, the property shall be considered by the governmental entity to be in conformity with the zoning ordinance for all future uses with respect to the nonconformity for which that variance was granted. 

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