Eminent Domain Archives

Can PennDOT or the Turnpike Commission take private land for a road or highway project?

Generally yes provided all of the legal requirements are met; however, a property owner still has the right to protect his or her property interests. Sometimes a project will involve PennDOT or the Turnpike Commission seeking an easement or right of way across a piece of property. Other times, it may involve the change of ownership of some or all of a piece of property. There are times when the taking will require a relocation of the property owner, but many times it does not. The type and extent of a taking depends on many factors such as the type and scope of the project and the location of the affected property in relation to the project. Determining the type and scope of a taking is an important first step in protecting a property owner's property interests.

Atlantic Sunrise Pipeline Decision Delayed

In a filing issued on or about October 20, 2016, the Federal Energy Regulatory Commission (FERC) indicated that it would rule on the Atlantic Sunrise pipeline project no later than March 30, 2017. This delay apparently is due to the agency's consideration of a minor pipeline route change of approximately 1.4 miles in Lancaster County as well as consideration of potential air pollution impacts associated with the construction and operation of the necessary facilities for the pipeline project.

Commonwealth Court of Pennsylvania Finds in Favor of Sunoco

Recently, the Commonwealth Court of Pennsylvania issued a decision in a case arising from an appeal filed by a number of property owners in Cumberland County, Pennsylvania challenging Sunoco's status as a public utility and Mariner East 2's status as a public utility service. The property owners raised a number of arguments in support of their appeal which included:

Law Suit Filed Against FERC

We recently received information that a law suit has been filed against the Federal Energy Regulatory Commission (FERC) by the Delaware Riverkeeper Network and the Delaware Riverkeeper in the United States District Court for the District of Columbia challenging FERC's relationship with the pipeline industry. Based upon information set forth within the Complaint, it is alleged that FERC receives funding from the industry which it regulates thereby creating a bias. The Plaintiffs also allege that FERC has a 100% approval rate on pipelines. Through this suit, the Plaintiffs are seeking to have FERC's reimbursement mechanism in the Omnibus Reconciliation Act of 1986 declared unconstitutional and/or a declaration that FERC's power to grant pipeline projects the power of eminent domain is unconstitutional and that the ability of FERC to pre-empt local and state laws is unconstitutional. Additionally, the suit also seeks a declaration that the procedure utilized by FERC to issue Certificates of Convenience and Necessity relative to the PennEast Pipeline and the other projects within the Delaware River Basin deprives the Plaintiffs of due process.

Recent Philadelphia Court Decision Regarding Sunoco Pipeline

On February 5, 2016, Judge Carpenter of the Court of Common Pleas of Philadelphia County issued a Decision in The Clean Air Council, et al. v. Sunoco Pipeline LP matter. The matter arose from a Petition for Preliminary Injunction and a Complaint filed by the Clean Air Council and some local property owners challenging the Mariner East II pipeline. In September 2015, Sunoco filed Preliminary Objections in response to that Complaint claiming that Plaintiffs lacked the standing to bring suit and that the court lacked jurisdiction for a number of reasons including, but not limited to, that the action was barred by the Eminent Domain Code and must be brought before the Public Utility Commission. Following briefs and argument, Judge Carpenter issued a Decision. The most significant part of the Decision is that Judge Carpenter overruled the bulk of Sunoco's Preliminary Objections which included the rejection of Sunoco's arguments that the Plaintiffs lacked standing to bring the suit and that the Court lacks jurisdiction to hear these claims.

Lavery Law Attorneys Present at PBI

On February 17, 2016, Lavery Law attorneys Sunshine J. Thomas and Peter J. Carfley presented at the Pennsylvania Bar Institute ("PBI") Eminent Domain Seminar in Pittsburgh, Pennsylvania. Additionally, Sunshine and Peter also presented at the same seminar in Mechanicsburg, Pennsylvania on February 24, 2016. The conference was entitled "The Legal Issues Surrounding Pipeline and Right-of-Way Agreements in the Marcellus Shale Region" with Sunshine and Peter presenting the section on "The Legal Issues Surrounding Pipeline and Right-Of-Way Agreements in the Marcellus Shale Region". Sunshine spoke about the eminent domain condemnation process, the steps that a pipeline company must follow in order to initiate the process, and the defenses available to property owners. Pete spoke about valuation and the Board of View process.

Cumberland County Judge Rules that Sunoco is a Public Utility

Judge Edward Guido of the Cumberland County Court of Common Pleas in Pennsylvania recently ruled against the preliminary objections which were filed by three land owners in Cumberland County challenging Sunoco's filing of condemnation proceedings to acquire easements across their properties for the Mariner East II Pipeline. Judge Guido determined that the proposed pipeline would provide propane, ethane and other products within Pennsylvania and, therefore, would provide "intrastate" service which is subject to regulation by the Pennsylvania Public Utility Commission. As Judge Guido determined that Sunoco is a regulated entity, he further found that Sunoco is a public entity and therefore possesses the power of eminent domain. This Decision is subject to further appeal by the involved parties within thirty (30) days following the issuance of the Decision.

A New Lawsuit Has Been Filed Challenging Sunoco's Eminent Domain Power

A new lawsuit was filed last week in the Philadelphia County Court of Common Pleas by the Clean Air Council and a number of residents of Delaware County claiming that Sunoco is not a public utility as it pertains to the Mariner East II pipeline and does not have the power of eminent domain. As of the date of this entry, Sunoco has not filed a formal response to the lawsuit. We will post further updates as additional information becomes known by our office.

Sunoco May Have Plans for a Third Pipeline

During a recent public meeting, Sunoco released information about a possible plan for a third pipeline. As many are aware, Sunoco has been utilizing a pipeline which was placed into service in the mid 1930's. More recently, Sunoco started the process to construct a second pipeline referred to as Mariner East II. Sunoco is still in the process of acquiring the necessary right of ways for the Mariner East II Project. During the recent meeting, however, Sunoco advised that they are considering building two parallel pipelines as part of the Mariner East II Project while the original plans only contemplated one line as part of the project. That second line is the third line which is presently under consideration. Based on the most recent information of which we are aware, the third pipeline is not yet confirmed. Rather, Sunoco advised that, as of the meeting, they were still in the process of determining whether they have sufficient commitments to warrant the installation of the third line. Nevertheless, as a third pipeline is a possibility, we caution property owners to be cognizant of the easement and right of way terms proposed to them by Sunoco. The terms of the easement agreement will dictate whether any additional compensation is due or required if the additional line is sought or placed.

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