Author Archive | Eminent Domain PA

A Proposed Natural Gas Pipeline Raising Issues for Nine Columbia County Townships

columbia_pipeline

By: Michael Lester
Publishedn in Press Enterprise
 

Land surveyors plan to visit about 300 properties in nine Columbia County townships in the coming months as an energy company maps a route for a proposed natural gas pipeline. Maps of the proposed line show that it would bisect the county along a north-south route, from Sugarloaf Township north of Benton to Cleveland Township south of Catawissa. Williams Partners, a Tulsa, Okla., energy firm, also plans to build a 25,000-horsepower compressor station somewhere in Columbia County. Preliminary maps indicate it will be located near the county’s northern line.If Williams gets Federal Energy Regulatory Commission approval for the 176-mile line through six Pennsylvania counties, it will begin negotiations to buy roughly 55-foot-wide land easements from property owners along its preferred path. If property owners object, Williams will seek the easements through eminent domain in the courts.

“Generally, once the FERC issues a certificate of public convenience and necessity for a project, the company may, by virtue of the authority granted in the U.S. Natural Gas Act, seek authority from the court to obtain the limited rights necessary to construct, operate and maintain a pipeline,” Williams says in its website primer on pipeline construction. Williams hopes to have the $2 billion line flowing with gas by the second half of 2017. It plans to host about a dozen public meetings in May or June in the five counties through which the line would pass.’Be wary’ Columbia County commissioners “would suggest anybody who (gets a letter from Williams requesting a land survey) to certainly get some legal counsel,” said Commissioner Chris Young. Young said if his property was targeted for the line, he would insist Williams pay for any legal bills he might incur for advice. Under Pennsylvania law, landowners can recoup up to $4,000 for legal and engineering fees from a pipeline builder

“But that’s only if a property owner chooses to fight a pipeline, and the pipeline builder goes to court claiming the power of eminent domain”, said lawyer Michael Faherty, who has represented landowners in hundreds of such cases. Faherty, of Lavery Faherty Patterson in Harrisburg, recommends hiring a lawyer to anyone whose property is being eyed by a pipeline firm. “Landowners need to be wary about these companies that come looking to acquire land, they don’t have an obligation to be telling the truth,” Faherty said. “They need to be wary of land agents.”‘Risk of explosion’ Faherty said the price landowners may fetch for an easement is based on the amount of property sought as well as the value of a property before and after a line is built.

With before- and after-pipeline appraisals, landowners can negotiate to recoup a loss in property value due to the line, Faherty said. “Some properties can be harmed by visual impact, harm of access and risk of explosion.” Faherty recommends against immediately getting an appraisal, suggesting a landowner first try to negotiate easements with the help of a lawyer. Just last week, Faherty settled an eminent domain case for a pipeline in the Reading area for $50,000. The company originally wanted to pay $3,000 to use a stretch of a business’ property, Faherty said. He said that easements under commercial properties typically fetch more than residential sites.

Expanding the pipeline as proposed now, the “Atlantic Sunrise” pipeline would cut through Columbia, Northumberland, Schuylkill, Lebanon and Lancaster counties, connecting branches of Williams’ Transco pipeline to the north and south. The project is fueled by the reserves of natural gas in the Marcellus Shale of northeast Pennsylvania that can be routed through the line to customers in Atlantic seaboard states, according to Williams.Williams spokesman Chris Stockton stressed that the company’s plans are preliminary. This means exact locations have not been determined for both the compressor station, a building of electric motors that pushes gas through the line, and the route of the 42-inch line itself.

The number of properties through which the pipeline will pass in Columbia County will “significantly decline” once the route is finalized, Stockton added. Stockton said half the route for a recent Williams project in Susquehanna County and New York was altered after public meetings, at which the firm heard concerns from landowners. Transco is the largest-volume natural gas pipeline system in the U.S., delivering natural gas through a 10,200-mile network.

Sunoco Pipeline – Survey Rights

survey_rightsMike Faherty appeared in the York County Court of Common Pleas on February 6, 2014, to oppose a Sunoco pipeline (Mariner East) request for an immediate right to survey a Mechanicsburg property.  Mike argued that the request should be denied because federal jurisdiction preempted the state jurisdiction or because Sunoco failed to correctly start litigation per Pennsylvania Rules of Civil Procedure. In the alternative, Mike argued for denial of the request because:  (1) Sunoco is not a Condemnor, (2) Pennsylvania Business Corporation Law does not allow eminent domain for propane or ethane transportation, (3) Federal law requires a Certificate of Public Convenience and Necessity, and (4) State law requires a Certificate of Public Convenience and Necessity. The judge approved Mike’s suggestion that the judge accept written argument over the following two weeks.

Property Owners take Sunoco’s Mariner East Pipeline to Court in Washington, PA

Mike Faherty represented multiple property owners vs. Sunoco Pipeline on January 21 before Judge Emery in Washington, Pa.  Mike pointed out that the Sunoco legal authority to date has yet to identify any specific law giving eminent domain power for the Mariner East Pipeline.  Mike also elicited evidence that the appraisal approach was wrong per the Eminent Domain Code and the bond security was inadequate.  Judge Emery may decide the initial four cases within a month.

Pa. Eminent Domain Pipeline Fight Headed to Court

NBC 10 Philadelphia | Sunday, Jan 19, 2014

Ron and Sallie Cox’s house in North Strabane Township is nestled behind a lush forest they are fighting to protect from a new natural gas pipeline inching toward their property.

The couple are so adamant about preserving their land that they have found themselves among more than two dozen property owners in Washington County involved in a complicated legal battle challenging Sunoco Pipeline’s right to cross their land. “It’s a disaster,” Sallie Cox said last week as her attorney prepared their case against the Philadelphia-based company’s claims it’s a public utility and has a right to impose eminent domain powers to enter private property for the 50-foot-wide project.

Arguments in the Cox case will be heard Tuesday in Washington County Court, and it’s outcome likely will set the tone for how the others will play out as Sunoco constructs a 50-mile pipeline from Washington County to Delmont in Westmoreland County. Sunoco began filing declarations of taking in Washington County Court last year, lawsuits that sought to condemn property and have the court approve the amount of bonds it needed to post to cover any damages.

President Judge Debbie O’Dell Seneca ruled the cases are too complicated to hear individually and consolidated them Nov. 11. The Coxes then claimed they were being treated unfairly and challenged Sunoco’s public utility status. Eight others involved in the case also countersued.

As a result, Washington County Judge Katherine B. Emery ruled the countersuits need to be settled before the company can proceed with condemnations, and she will proceed first with hearing arguments in the Cox appeal as to whether Sunoco is a public utility.

“The property owners have their full right to use their property as they wish,” said Harrisburg attorney Michael F. Faherty, who represents the Coxes and nine other property owners. Faherty argued in his Wednesday response to the court that Sunoco needs to obtain eminent domain authorization for the pipeline from the Federal Energy Regulatory Commission, claiming the state court has no jurisdiction in the case. He said some of his clients don’t want Sunoco to take their land, while others feel they have not been offered “persuasive enough prices.”

The Coxes are among those who don’t want the pipeline and have complained that they wouldn’t be allowed to plant anything on the right of way and don’t want to deal with the company spraying to maintain a clear path for the pipeline. “I’m one of the people here who has the most to lose,” said the Coxes’ neighbor, Raymond Romanetti, who races horses and has yet to join the lawsuit. “It’s ridiculous that someone has to hire an attorney to protect their property,” Romanetti said.

In Sunoco’s Jan. 10 answer to the court, its attorneys argue it has eminent domain powers under FERC rules, which permit privately held companies to build an interstate pipeline, court records show.

This pipeline, named Mariner East, would connect to MarkWest Energy’s gas-processing plant in Chartiers Township and hook up to an existing, nearly 20-year-old line crossing Pennsylvania into Delaware. Range Resources of Southpointe is a partner and would ship ethane and propane in the pipeline from MarkWest, company spokesman Matt Pitzarella said. “Obviously, it’s an important project to us,” Pitzarella said.

Sunoco states in court records it no longer wishes to voluntarily negotiate purchase prices for the unsettled cases due to the “anticipated delay” of the project. Company spokesman Jeffrey P. Shields said Sunoco doesn’t comment on pending litigation. When the project was announced in March Sunoco expected construction to be underway before the end of last year.

“We are in the process of clearing right of ways and flagging construction areas, and we started directional drills and boring this week,” Shields said. “We expect to begin installing pipe in the next two weeks,” he added.

Mike Faherty identifies defenses to Sunoco’s attempt to use eminent domain power

Sunoco files for eminent domain to acquire Penn land for pipeline

Photo: Lillian DeDomenic | For The Penn Trafford Star
By Chris Foreman
Staff Reporter, Tribune-Review
Published: Wednesday, July 17, 2013

Sunoco Pipeline officials are trying to use eminent domain to acquire an easement in the vicinity of a retirement home and assisted-living center in Penn Township for a 50-mile liquid gas-transmission line. The company last week filed a petition in Westmoreland County Common Pleas Court against Quest Realty Partnership, which owns an 89 acres that are bordered by Mellon, Ader and Walton Roads. Quest also owns an adjacent property at Ader and Walton that has the William Penn Care Center and William Penn Senior Suites and Personal Care.

Court records show the filing is Sunoco’s first attempt in the county to take right-of-way against a property owner’s wishes for the Mariner East project. Sunoco also initiated cases last week to request court orders enabling it to go onto properties in Sewickley and South Huntingdon townships to perform environmental testing related to the proposed pipeline path.

Sunoco has plans to run its pipeline — to transport ethane and propane as natural gas liquids — along the same route as an existing line owned by Dominion Transmission Inc. Dominion previously got a court order to condemn via eminent domain a portion of Quest’s property along Mellon Road in August 2011.

In its filing against Quest, Sunoco said it may use the right of eminent domain because it is considered a “public utility corporation” under Pennsylvania’s Business Corporation Law.

But a Harrisburg attorney who represents some Washington County property owners in the pipeline’s path says it’s not clear to him that Sunoco has the authority for eminent domain.

Under the law Sunoco cites, a company may receive permission to condemn land for pipes transporting natural gas, petroleum or petroleum products but not natural-gas liquids, Michael Faherty said.

“I think it’s open to a number of challenges,” Faherty said after reviewing a copy of Sunoco’s filing.

Quest’s attorney, George Pomper, also disputed Sunoco’s authority in a letter earlier this year in which he opposed Sunoco’s court filing to conduct environmental testing on Quest’s property.

“Sunoco is not a ‘utility’ to the best of our knowledge,” Pomper said in the Jan. 24 letter filed in court records. “Sunoco is known as a gasoline retailer and purveyor of motoring products such as wiper blades, tires and convenience store goods. “The owners of Quest Realty are not aware of any electricity, natural gas, water and the like sold by Sunoco to the public.” Pomper did not return messages from the Penn-Trafford Star about Sunoco’s filing.

Sunoco spokesman Joe McGinn and Sunoco’s Greensburg-based attorneys, George Stewart and Dara DeCourcy, also did not respond to requests for comment.

Landowners who oppose eminent domain can raise objections questioning whether a company is properly licensed or if a project could create environmental concerns, said Peter Georgiades, a Pittsburgh attorney who specializes in eminent domain issues. But simply saying “I don’t want it” isn’t sufficient, he said.

“There’s no leg to stand on if you don’t want it,” Georgiades said.

As of Monday, Sunoco reached agreements for rights-of-way for 16 Penn Township residential and industrial properties, county records show. Two months ago, Penn Township commissioners declined to act on Sunoco’s offer of a $1,550 payment for an easement on vacant property the township owns behind Smartie Artie’s at Zackel’s restaurant in Claridge. Manager Bruce Light he hasn’t heard anything from Sunoco since, but the township has received notice that Sunoco applied for an erosion and sedimentation control permit from the Westmoreland Conservation District.

Lehigh County Access

Mike Faherty completed litigation of a Lehigh County condemnation for a road widening.  The Condemnor asserted the commercial property was vacant and offered $63,600.  Faherty presented evidence that the former gas station was used as a motor vehicle repair  garage and vehicular access was eliminated during construction. The Board awarded  $110,000 in property damages plus delay damages and professional fees.

Commonwealth Pipeline

A recent Patriot News publication titled Here It Comes described the anticipated natural
gas pipeline planned to run from Lycoming County, PA, to Rockville, MD.

The article touted the anticipated lower energy prices in Central Pennsylvania. However,
other unfavorable aspects of the process are also coming to Central Pennsylvania.
The article repeatedly quoted Bill Moler, the Chief Operating Officer of the responsible
company, Inergy Midstream. He described the company’s approach of paying for
property damages in a manner in which the various owners along the route would receive
the same amount of money per foot of the right-of-way acquisition. Unfortunately, this
plan and approach to property rights is in direct conflict with the controlling Pennsylvania
law, the Pennsylvania Eminent Domain Code.

The correct approach to damages, which may be much more costly to Inergy Midstream,
is to pay eminent damages based on the fair market value of the entire property interest
before and after a condemnation. The proper approach would suggest that a peaceful
residential property would have much more significant monetary damages than a vacant
property. Property owners would be wisely cautious in dealing with a company which
seeks to avoid paying fairly for the acquisition of property rights.