Keystone Pipeline Leaks Oil

Continuing publicity about pipeline leaks demonstrates both their dangers and market awareness of those dangers.

One would expect older pipelines to have problems, including leaks. Indeed, the replacement of older pipelines is identified as a justification for constructing newer pipelines. However, even new pipelines can have problems. I have detailed problems that have occurred during pipeline construction, as exemplified by the problems surrounding the ET Rover pipeline. On Halloween, the most controversial pipeline constructed in recent history, the Keystone Pipeline, leaked. According to CNN, and a press release issued by TC Energy Company, “part of the Keystone 1 Pipeline in North Dakota was shut down after a leak of about 9,120 barrels of oil -- 383,040 gallons -- was discovered” resulting in 2,500 square yards being impacted by the released oil.

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EGLE Announces Awards for Infrastructure Improvement Projects

16 municipal projects, which may or may not involve right of way acquisition, have received funding by EGLE.

The Department of Environmental Quality has been renamed EGLE, which stands for the Michigan Department of Environment, Great Lakes, and Energy. EGLE recently issued a press release identifying project that it is supporting through various awards. The projects include the following.

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Dequindre North of Utica to North of Auburn Road Widening Announced

The Road Commission for Oakland County’s 2020 Budget includes widening Dequindre Road immediately south of the project for which they are acquiring right-of-way currently.

The Road Commission for Oakland County just released its 2020 budget. That budget includes funds to widen Dequindre Road to five lanes from north of Utica Road (which is already five lanes) to the north of Auburn Road and Dequindre Road intersection. The properties subject to acquisition includes residential homes facing Dequindre and some businesses. 

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Oakland County Road Commission Initiates Dequindre Road Takings

Oakland County is widening Dequindre from Auburn to Hamlin Roads, requiring eminent domain to acquire necessary rights.

The Oakland County Road Commission is widening Dequindre Road from Auburn to Hamlin Roads. The road widening project requires property rights that are pushing road right-of-ways deeper inside of lots for residential homes, many of which are already very close to the road.

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City of Niles Moving Forward With Avigation Acquisitions

Niles and the MDOT Bureau of Aeronautics are taking the next steps in acquiring avigation easements from property owners surrounding the Niles Airport. 

I am currently representing a group of property owners who are facing the acquisition of avigation easements over their homes. One case, involving the acquisition of an avigation easement over farmland, has already been successfully concluded. The City paid substantially more just compensation than was originally offered. The City also reimbursed all of the property owner’s attorney fees. Finally, we reaching substantive agreements that benefit the property owner such as explicit confirmation about what crops can still be planted in the encumbered area and how the area will be restored after trees are removed.

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Owner’s Guide to Understanding Supervariances

The Uniform Condemnation Procedures Act provides condemning agencies with the ability to obtain variances to cure zoning non-conformities created by their takings. 

There are two essential types of takings, total and partial takings. A total taking occurs when an agency acquires an entire property. A partial taking occurs when an agency acquires either a fee simple interest in only a portion of a property (such as the acquisition of a frontage strip for a road project) or an easement. 

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MDOT Aeronautics Bureau Issuing Inaccurate Brochure

The Michigan Department Transportation Aeronautics Bureau is issuing a brochure based upon federal standards that is grossly inaccurate in many respects as it relates to property owner rights under Michigan Law. 

I am currently representing several property owners as it relates to the Niles Airport and its desire to obtain additional avigation easements. (“Avigation” is an unfamiliar word to many, it relates to the word “aviation,” these are easements benefitting airports.)

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Owner’s Guide to Avoiding Tax on Condemnation Proceeds Through Internal Revenue Code §1033 Relating to Involuntary Conversions

The Internal Revenue Code allows taxpayers to defer gain arising from condemnation award.

Ordinarily, when a taxpayer sells or exchanges property, he recognizes gain equal to the difference between his basis in the property sold or exchanged and the amount of money or fair market value of property received. However, section 1033 of the Internal Revenue Code (“IRC §1033”) permits a taxpayer to defer gain if the condemnation award (or proceeds from a sale made under threat or imminence of condemnation) are timely reinvested in similar property.

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US Supreme Court Allows Greater Access to Federal Courts for Taking Cases

In Knick v Scott, SCOTUS overruled precedent requiring property owners asserting takings by state or local government to exhaust state court remedies before seeking relief in the federal courts.

In a 5-4 opinion, the Supreme Court of the United States reversed many years of precedent to allow property owners to proceed directly to federal court to pursue takings claims against state and local governments.

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ITC/ANN ARBOR EASEMENTS CLARIFIED TO REDUCE IMPACT ON PROPERTIES

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.

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ANN ARBOR CITY COUNCIL REJECTS REZONING REQUEST

I successfully appeared on behalf of the property owners opposing a City-initiated rezoning of their property, presenting arguments establishing that such a rezoning would have constituted a taking. 

On Monday, April 15, 2019, the City of Ann Arbor’s City Council was asked to review a proposed rezoning of a portion of S. Ashley Street from a commercial zoning district to a multi-family zoning district. The City of Ann Arbor’s professional staff had recommended against such a rezoning.

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Controversy Surrounds ET Pipeline in Pennsylvania

A Pennsylvania pipeline may have received special political favors to expedite a pipeline project that is being criminally investigated and that has had numerous environmental issues.

According to this Guardian article, Pennsylvania Governor Tom Wolf’s role in approving the Mariner East 2 natural gas liquids pipeline through southern Pennsylvania is being questioned. The pipeline “sparked growing outrage” because “it has caused roughly 140 documented industrial waste spills into wetlands and waterways, destroying numerous residential water wells, and opening large sinkholes just steps from residents’ homes.”

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Would the Proposed Dredging of the Grand River Require Acquisition of Property Rights from Adjacent Owners?

This post is about questions rather than answers, but a proposed dredging project has me wondering about the property rights of adjacent owners.

A proposal has been touted seeking to dredge 23 miles of the Grand River, from Eastmanville Township to Grand Rapids, to allow powerboats to travel from Grand Rapids to Lake Michigan. The Grand River travels through Ottawa County, including Spring Lake, Tallmadge, Allendale, and Georgetown Townships as well as through Wyoming.

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Michigan Court of Appeals Confirms that Agencies Must Strictly Comply with Procedural Requirements

In a published decision, the Court of Appeals dismissed a condemnation for lack of jurisdiction because the agency failed to make a proper good faith offer that included all owners.

The Michigan Court of Appeals issued its opinion in Board of County Road Commissioners for the County of Washtenaw v Shankle, et al. 

In Shankle, the issue was whether the Road Commission had properly invoked the jurisdiction of the trial court. The trial court had declined to dismiss the lawsuit for lack of jurisdiction, finding that the procedures were not “materially defective.” 

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Oakland County Planning Airport Expansion

The potential expansion of Oakland/Southwest Airport in New Hudson will result in removal of several homes and acquisition of additional avigation easements.

Oakland County owns the Oakland/Southwest Airport in the southwest corner of Milford and Pontiac Trail Roads in New Hudson. Homes exist to the east on Milford Road and Bonne Terre Street and to the west on Annah Drive.

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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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