Has DTE withheld distribution of complete easements, including the exhibit containing the legal description of the encumbered property, in an attempt to hide the true impacts of the easements from homeowners?
Last night, I attended a public meeting held by DTE to inform residents in Milford about a new pipeline. I also scanned an appraisal provided by DTE to a property owner and examined their offer letter. Neither the appraisal nor the offer letter included legal descriptions of the property being encumbered. DTE has also distributed a survey document identifying the proposed construction area for the pipeline.
The key question is whether the survey DTE distributed is merely a construction document or whether it is intended to be part of the easement itself. This is incredibly important. The form easement that I reviewed included a litany of verbs describing the expansive rights DTE seeks to acquire. This includes the right to expand or relocate the pipeline. If the easement encumbers the entire property, without a specific area identified as an “easement area,” it means that DTE can place its easement anywhere on the property, including underneath the owners’ home or driveway. Based upon my review of the form easement, I believe this to be the case. Under Michigan law, DTE must pay for the rights it actually acquires. Therefore, if DTE acquires an easement that encumbers the entire property, it effectively converts the existing homes into interim uses of unknown duration because a pipeline can be routed underneath the home. The home might be allowed to stay forever or it could be removed next year, at DTE’s discretion. Since DTE will determine the rights it wishes to obtain, it must pay for those rights based upon the assumption that they will be used to the fullest extent allowed by law. I discussed this concept, including another project involving the same language in a pipeline easement, in this article published by the International Right of Way Association.
This obviously has a tremendous impact on just compensation. Has DTE simply delayed incurring the expense of having a surveyor prepare the full easements or is DTE hoping that owners will grant easements without understanding their impacts? At this point, I do not know and will not know until DTE issues proper good faith offers.
If you have been confronted by a pipeline company, I suggest that you review this more comprehensive blog post, an owners’ guide reviewing many issues implicated by takings by pipeline companies.
Please feel free to contact me to address any eminent domain issues.