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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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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Carvana Part of Adell Plan in Novi

I am excited to represent Carvana before the City of Novi in their efforts to build their first facility in Michigan.

In addition to representing property owners in eminent domain, I also maintain an active zoning practice. I am very excited to represent Carvana before the City of Novi in this project. It relates to Carvana's efforts to place their first Vending Machine Fulfillment Center in Michigan. If you do not know what this is, it is extremely cool, check it out.

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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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