Federal Eminent Domain Blog : Eminent Domain & Condemnation Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan and Washington, DC

In a letter to the Editor of the Southtown Star Forum, the writer Pat Fogerty of Monee, Ilinois, raises the issue of building a third airport in Gary rather than Peotone.

The reality is that when airports are built, lots of jobs are available for all political associates. The Commission offers a veritable landmine of patronage.

Gary Airport might make sense. One should note that the Airport was recently expanded and improved. However, the rational decision of moving the third airport to Gary is an unlikely result in this political process.
 

Southtown Star 

I would also like to suggest that Gov. Pat Quinn and other state leaders take a long, hard look at the Gary-Chicago Airport, which has much land on which to expand. No farmland would be wasted, and no residents would be forced from their homes.

Many of us who are not “politicians” think this is a perfect solution to supplying the Chicago area with a third airport, and at about one-third or less than the cost of building a new one. And the location is as good if not better than Peotone — easily accessible to downtown Chicago and near major highways.
 

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In Citizens United, a Court declares that individuals have the right to Freedom of Speech and therefore are provided the opportunity to make unlimited campaign contributions.

The problem with limiting or not limiting campaign contributions is premised upon the Citizens United United States Supreme Court decision. This notion finds that making an unlimited contribution on a political issue is part of Freedom of Speech. As such, limiting the contribution would be an unlawful limitation on the Freedom. However, in Citizens United, we now have the Supreme Court allowing these unlimited donations to what are called 529's, entities that do not have to report where the funds are raised from. This creates the opposite of Freedom of Speech.

Freedom of Speech contemplates that when you are speaking freely, you are protected by the courts through the Constitution. Here, since protection is not necessary because the donors can keep secret who the money is provided to, they are not speaking. 

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The Virginia Public Radio documentary covering the noise mitigation project surrounding Burlington International Airport offers interesting insight into a national problem.

Noise level is determined by “DNL” (decibel noise level). Clearly, there is too much noise around the Airport, creating a need to buy out homes in the noise mitigation area. This federally-funded project buys out some homeowners at potentially less than fair market value. At the same time, it leaves businesses without any neighborhood in which to sell product. The results are harsh for the residents who are forced to move from their neighborhoods and the commercial operations within the area.

VPR News

The Airport Commission says it's not trying to force anyone out, but it has drawn up maps that show where the noise is the worst. The effort is part of a Federal Aviation Administration program to relocate residents like Bouffard from these rundown neighborhoods to give the airport more room for the noise.

"This is a very unusual situation," said Heather Kendrew, the director of environmental compliance for Burlington Airport. "I can't think of anywhere else in Vermont where you would find a neighborhood that looks like that."

Inside the airport terminal, Kendrew pointed to one of the FAA's maps to explain the program. "If you are located in an area where the line reads 65 DNL, which is a day-night average of decibels, you become eligible for the FAA's relocation program."

Under that program, the federal government gives the airport money to buy properties where the noise is considered unbearable. For now, Kendrew says it's voluntary. "Other airports have used eminent domain to take homes. We do not want to do that."

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A letter to the editor of The Barrington, RI Patch, explained that the proposed Rhode Island legislative proposals required that the turbines will exist until all bonds are paid off. The article noted that one of the representatives had withdrawn his support and has urged the local town council to withdraw its support for the wind turbines.

A major reason local governments support wind turbines is that the equipment is a huge positive tax generator. Forget about the jobs that are claimed the wind turbines will produce because the jobs are never produced. The avoidance of fossil fuel usage is minor in comparison with the tax revenue generation.
 

Barrington Patch

It cannot be altered or dissolved or impacted by any legislation until all bonds are paid off, regardless of the timeline. What do we end up with? A quasi-governmental organization that can pay its people whatever they want, offer a benefit package that has no accordance with private industry, can easily cover their expenditures because they can charge National Grid any rate they desire, and the ratepayers will absorb the cost.

You must look at this and decipher for yourself if you think your town council members have your best interest at heart. Putting your personal property at risk is egregious!

The Senate bill is S2870 and is sponsored by Senator DiPalma. The House bill is H7592 and is sponsored by Representatives Gallison, Malik, Morrison, Edwards, and Handy.

Representative Malik has since withdrawn his support and is urging his town council to withdraw their support.

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The relationship between the fee owner and the mineral rights owner have always been determined by the contract itself. By example, when landowners gave up the rights to both exploration and storage use of the gas strata, generally the rights for gas storage at some future date were retained by the exploration company.

Virginia House Bill 710 would change the relationship. If the opening and shaft is transferred to the mining company through legislation, a basic property right to control what maintained the coal previously is now being taken away from the owner of the land. This seriously impairs a property right maintained by the fee owner.

Roanoke Times

For decades, a good rule for landowners who don’t own their mineral rights has been this: The coal companies get the mine; the landowners get the shaft.

Thanks to the passage of HB 710 in the Virginia General Assembly, landowners can’t even claim the shaft anymore.
Coal companies not only own the coal, but they now own the space where the coal used to be after it’s mined.

Virginia law governing mining voids was stricter than most states prior to passage of HB 710. In a 1921 case, the Virginia Supreme Court ruled that "nothing but the coal and the right to remove it ought to be understood to pass by the deed."

In other words, once the coal was mined, the coal company lost all right to the property. HB 710 changed that drastically. The bill gives the coal company the right to the void left by the coal in perpetuity.

You may be wondering why coal companies would want to retain ownership of empty space. Why, so they can fill it, of course. With mining waste.

Mining and prepping coal creates a lot of waste, most of it in the form of a thick, gooey, toxic sludge. This can be expensive to dispose of. A favored method of the coal industry is to pump it into abandoned mines — even though doing so creates accidents simply waiting to happen.

The waste can seep into the groundwater, or, as it did in Martin County, Ky., on Oct. 11, 2000, it can burst its way out. The Martin County spill is considered one of the worst environmental disasters in the nation. More than 250 million gallons of sludge spilled into nearby streams.

Until a 2008 state Supreme Court ruling upheld the 1921 precedent, CONSOL Coal had been dumping sludge into mining voids without the consent of landowners.

Thanks to HB 710, the company will be able to start pumping sludge again. Oh, the law calls for the coal company to get the owner’s consent, but it also says that consent cannot be "unreasonably withheld if the owner has been offered reasonable compensation." Reasonable, of course, is in the eye of the beholder.

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We all want to protect our First Amendment freedoms. However, seeking an injunction to avoid an ordinance violation requires requests through the local planning process before seeking relief from the courts. The United States District Court was correct in not granting relief sought, but if the zoning board confirms the citation, one can expect to see this case return to the Federal Court.

Virginia Pilot

U.S. District Court Judge Arenda L. Wright Allen disagreed. She noted that a temporary restraining order is "an extraordinary remedy that is granted sparingly and in limited circumstances."

She wrote that Central Radio's First Amendment rights "will not be curtailed in the absence" of an injunction because it can obtain an injunction from the city.

To receive a delay in city enforcement, Central Radio may appeal the zoning violations to the board of zoning appeals, said Adam Melita, a deputy city attorney. If it does, a delay is granted automatically, he said.

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East Bay Energy Consortium apparently is taking a different route than other wind energy companies.

Wind turbine energy production in the Midwest has occurred when there was a voluntary arrangement between the landowner and the wind turbine company by which the turbine company leases the owner’s property at an agreed upon rate. The notion of eminent domain for the private profit making institution simply has not been contemplated to date.

ecoRI News

The term has raised the ire of political groups and government skeptics in recent months, as the East Bay Energy Consortium (EBEC) has pushed for legislation to establish itself as a public-private state agency.

During a May 2 Statehouse hearing, political ideologues were quick to dispel the project as a land-grabbing threat to free society. Lisa Blais of Ocean State Tea Party in Action said if given the special designation EBEC would become "a dangerous quasi-government agency that is answerable to no one."

Blais and other opponents of the bill claimed state representatives and town/city councils within the nine-community EBEC alliance were withdrawing support for the bill after learning about the eminent domain clause.

EBEC has said it is simply seeking eminent domain authority out of necessity, and has insisted there is no plan to take land. Having the privilege allows EBEC to assume all liability for the project and with it the ability to issue municipal bonds, which will be needed to fund the proposed $50 million to $60 million wind project in Tiverton.

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Northeast Utilities has not received the authority to acquire by eminent domain in New Hampshire. Therefore, the utility will have to purchase by arms-length transactions with individual owners.

Without question, the utility will ascertain a way to purchase enough property that there will be so few properties left for the project to occur. Then the State Legislature will find itself required to authorize the utility with the power of eminent domain in New Hampshire.

Boston Globe

Olivier said Northeast Utilities, parent company of Public Service Co. of New Hampshire, Western Massachusetts Electric Co. and Connecticut Light & Power, can secure rights of way in the Northern Pass power project in New Hampshire without using eminent domain.

New Hampshire Gov. John Lynch signed legislation in March prohibiting the use of eminent domain for projects not directly related to his state's power needs, such as Northern Pass. He said the use of eminent domain should be limited to projects intended to benefit the public.

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Owners Counsel of America, a network of leading eminent domain attorneys, has elevated two outstanding attorneys to its Board of Directors. The lawyers are Warren C. Herlong, Jr. of Mobile, Alabama, and Robert H. Thomas, of Honolulu, Hawaii. These two individuals have extensive experience representing property owners in eminent domain proceedings. They represent the interests of private property owners throughout the country very well.

The Owners Counsel provides strong representation for property owners being acquired through the condemnation/eminent domain process.

Virtual-Strategy Magazine

Attorneys from Alabama and Hawaii have been selected to serve on the Board of Directors of the Owners' Counsel of America, a national organization focused upon defending private property owners in eminent domain, inverse condemnation, regulatory takings and related property rights litigation.

Jacksonville, FL (PRWEB) April 29, 2012

The Owners' Counsel of America, a nationwide network of eminent domain attorneys dedicated to the defense of private property ownership, has elected two new members to its Board of Directors for 2012: Warren C. Herlong, Jr. of Mobile, Alabama and Robert H. Thomas of Honolulu, Hawaii. Mr. Herlong and Mr. Thomas will serve a three year term and join other practicing eminent domain attorneys from across the country on the Board. Other Board member continuing their terms of service include James L. Thompson of Maryland, Keith M. Babcock of South Carolina, Robert Denlow of Missouri, John Hamilton of Kansas, Edward G. Burg of California and Andrew P. Brigham of Florida, as the association's Moderator.

Warren Herlong is a partner with Helmsing, Leach, Herlong, Newman & Rouse, P.C. in Mobile. His extraordinary career spans more than three decades of law practice with particular focus upon eminent domain, inverse condemnation and land valuation litigation. He has appeared in more than 1,000 hearings, trials and arguments at the State Probate, Circuit and Appellate court levels as well as within the Federal court system. Mr. Herlong frequently lectures, writes and instructs on topics relating to eminent domain, condemnation and land valuation litigation in Alabama and nationwide.

Since 1999, Mr. Herlong has been active in the American Bar Association, holding membership in the Committees on Condemnation, Zoning and Land Use in three ABA Sections: Litigation; Real Property, Probate and Trust; and State and Local Government. From 1999 through 2002, he was Co-Chairman of the ABA Section of Litigation’s Committee on Condemnation, Zoning and Land Use. He is also the Eminent Domain and Condemnation Representative to the Alabama Law Institute’s Real Estate Standby Committee and was influential in drafting proposed changes to Alabama’s 1986 Eminent Domain Code. Among his many honors, Mr. Herlong has been selected for membership in the American College of Real Estate Lawyers (ACREL), the premier organization of U.S. real estate lawyers headquartered in Rockville, Maryland.

Robert Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu, concentrates his practice on property and land use issues including eminent domain, regulatory takings, water rights, and voting rights. He has tried cases and appeals in Hawaii, California, and the federal courts, including the Court of Federal Claims. A frequent author of amicus curiae briefs, Mr. Thomas has sought to advance the cause of private property rights in the appellate courts and U.S. Supreme Court. He has authored briefs in support of property owners in Kelo v. City of New London, 545 U.S. 469 (2005), Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), and Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, 130 S. Ct. 2592 (2010).

Mr. Thomas is a featured speaker at land use and eminent domain conferences in Hawaii and nationally and he regularly publishes scholarly and practical articles on issues relating to these practice areas. His blog on land use, property, and takings law, inversecondemnation.com, is one of the most widely-read blogs on these subjects. Mr. Thomas currently serves as the Chair of the Condemnation Law Committee of the American Bar Association's Section on State & Local Government Law. He is also the Managing Attorney for the Pacific Legal Foundation's Hawaii Center, a public interest legal foundation dedicated to defending private property rights and individual freedom.

ABOUT OWNERS' COUNSEL OF AMERICA:
The Owners’ Counsel of America is a nationwide network of experienced condemnation attorneys devoted to protecting the rights of private property owners large and small, locally and nationally, and to advancing the cause of property rights. The lawyers affiliated with Owners’ Counsel are in private practice in nearly every state and represent property owners against federal, state, and local governments, utilities, redevelopment authorities and other entities that may be armed with eminent domain power. Additional information about the Owners' Counsel of America is available at http://www.ownerscounsel.com.

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