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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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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