Monday, May 6, 2019 at 10:29AM
Clark Hill

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.

I am representing a number of property owners in Ann Arbor and Pittsfield Township who are contesting the just compensation owed as a result of ITC acquiring property rights to install a new transmission line. However, before moving to the just compensation phase, I engaged in extensive negotiations with ITC resulting in the entry of a court order that clarifies the easement to address a number of concerns raised by the property owners.

In each of the cases in which I represent the fee owner of the property, a Stipulated Order Waiving Necessity, Confirming Title, Transferring Possession, Ordering Payment of Just Compensation, and for Other Relief was entered by the Court. It will be recorded with the Register of Deeds. The easement sought by ITC is an attachment to it, with the body of the order containing various “clarifications” of that easement.

Specifically, the parties clarified that (1) an additional electric transmission line could not be constructed; (2) poles, towers, guy wires, anchors, or other Facilities that would impede parking or access to buildings cannot be constructed within any paved areas except in the case of temporary poles during an emergency; (3) ITC cannot enter any of the property owners’ buildings; (4) access entrances either to the properties themselves or the buildings on the properties cannot be blocked; and (5) and any damage to parking lots shall be repaired by ITC. Additional provisions relating to the initial construction were also included.

ITC was presumably motivated to reach these agreements for two reasons. First, when an agency engages in a partial taking such as an easement acquisition, just compensation must be evaluated assuming that the newly acquired rights will be used to the fullest extent of the law. This article discusses the application of this concept in different scenarios. My raising the issue alerted ITC that if they refused to address these issues, just compensation claims would be forthcoming. Additionally, ITC was able to avoid a necessity challenge that could have impacted the construction schedule. 

My clients benefitted significantly from this agreement. My clients preferred avoiding future problems on their multi-million dollar properties above making just compensation claims.

Please contact me if you are confronted with any just compensation or other taking issues.

Article originally appeared on Clark Hill Property Owner Condemnation Services (
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