METC’s Easement Option Agreements: Why Would Anyone Sign Them?

I have examined Easement Option Agreement packages distributed by METC’s right of way agents. They can be summed up as “more rights for less money.”

The option itself is problematic.

• The options do not specify the areas encumbered by the easement. Rather, a survey will be undertaken later and the location must be acceptable to METC in its “sole discretion.” It need not be acceptable to the property owners.

• The nominal option payments grant METC rights on the property for four years.

• It requires property owners to assist with obtaining government permits. Property owners should not be required to obtain approval for projects they do not desire.

• METC, its agents, employees, and government representatives may enter the property whenever they want, without notice, and unaccompanied. Under the Uniform Condemnation Procedures Act, an agency can only enter property after providing a statutory notice and must allow the owner to attend the inspection.

• While the options require limited restoration and reimbursement for crop damage, there is no implementation mechanism. Owners must hope that METC treats them fairly.

• Property owners must obtain consent from their mortgage lenders. In an eminent domain lawsuit, METC must obtain that consent.

• Owners must make representations about the state of their title. If METC condemned, it would be required to identify all other owners.

• The option allows METC to use whatever property it wants outside the easement area for construction, without paying any compensation for it. Construction activities like those contemplated by METC in this project often have detrimental impacts on farmland that lasts for years, including compaction and soil mixing. Temporary workspace acquired  through eminent domain are subject to just compensation. 

The option includes the form of easement, which is also problematic.

• METC can construct however many transmission lines that it desires. When METC attempted to obtain those rights from clients of mine near Coldwater, I stopped it.

• METC can increase the kilovolt capacity of the lines at its discretion. I stopped that too.

• The easement allows METC to cross over the entire property to access the area encumbered by the easement, without paying for that right.

• It only requires reimbursement for growing crops that are damaged, without any payment for future reduced yields attributable to compaction, soil mixing, damaged drain tile, or impacted irrigation.

• There are no provisions governing how excavated soils are treated to avoid mixing top soil.

• Many of these easements impact timber stands. There is no language about how those areas will be treated afterwards, including what happens to the cut wood or removal of stumps, filling, and grading.  Areas cut through woodlands are susceptible to buckthorn infestations. Buckthorn is a host for soybean aphids.

The compensation being offered is woeful. METC’s offer is based only on the value of the land encumbered by the easement. Just compensation requires consideration of damages to the remainder, including the impacts of the access rights encumbering the entire property, damage to drain tiles or irrigation systems, limitations on the future ability to install irrigation systems, reduction of value to any homes on the property, impacts on future development if that is within the highest and best use, loss of trees, costs to avoid business interruption incurred when seeking to restore the property, and just compensation for temporary work spaces.

In my opinion, these offers do not provide adequate protection of property rights or just compensation. METC did not even bother to convey these offers to clients who retained me before they started disseminating them, perhaps because they knew that I would never recommend that a client sign something of this nature.

If you have been approached by METC, please consider joining the client group that I am building. I have 28 years of experience handling eminent domain cases in Michigan, have handled more cases against ITC and METC in this state than any other attorney, and provide a combination of an experienced attorney who will personally handle your case with all the support of one of the largest law firms in the country. I handle these matters on a contingent basis and there is no charge to consult with me. Michigan laws include provisions governing the reimbursement of attorney and expert witness fees by agencies like METC.

For more information about what I can do for you in these cases, please see this post that specifically addresses METC’s projects.