Evidence of Purchase Offers

evidence

The Pennsylvania Supreme Court has decided a case which allowed evidence of purchase offers in addition to the traditional evidence of comparable sales. In Lower Makefield Township v. Lands of Dalgewicz, (No. 33 MAP 2011, Decided 5/29/13) the Supreme Court allowed the property owner to testify to an offer to purchase his property.  An offer letter was admitted into evidence. Both parties stipulated to the authenticity of the offer.  The court reasoned that the owner had provided a sufficient foundation to establish that the offer was made in good faith, by a party acquainted with the value of the property and with sufficient intention and ability to pay.

The case thus blurs the prior bright line distinction that offers were not adequate evidence, while comparable sales were valid evidence. The ruling appears to favor property owners as being the ones to be in receipt of the offers to purchase. Nevertheless, property owners should be mindful that it is possible that a condemnor would uncover evidence of a low offer and attempt to make use of such an offer as evidence. Property owners would be wise to obtain written proof of offers of relatively high purchase offers.

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.

The Limitations of Federal Eminent Domain Power

Some pipeline companies threaten property owners with the eminent domain power to take, or condemn, land rights for a pipeline. Fedreral eminent domain power is limited.  The Federal Energy Regulatory Commission may grant such power, but only does so in limited situations after extensive review.  State eminent domain power for pipelines varies widely. Threatened property owners should consult with an experienced eminent domain attorney in that state. A resource for such attorneys is the Owner’s Counsel of America at www.ownerscounsel.com

The following article is an interesting story of how this power was denied to oil pipeline companies.

Committee kills eminent domain oil bill at sponsor’s request  
Written by Marianne Goodland, State Capitol reporter   
Wednesday, 01 May 2013 10:53

The more they heard, the less they liked.

That’s how Democrats in the House Transportation and Energy Committee reacted to a bill that would have granted eminent domain and condemnation rights to oil pipeline companies. But the committee instead voted 12-1 last week to kill the bill, at the sponsor’s request. In the House, Senate Bill 13-191 picked up another sponsor: Rep. Jerry Sonnenberg (R-Sterling). Sonnenberg and co-sponsor Rep. Angela Williams (D-Denver) told the transportation committee that the bill was just a technical correction to a long-ago statute and would put back into law a common practice of allowing oil pipeline companies the right of eminent domain. The bill continued to pick up opposition during its three-month-long trip through the General Assembly. The first was from the plaintiffs in a 2012 Colorado Supreme Court decision that SB 191 was designed to overturn. Then it was representatives of irrigation ditch companies in northeastern Colorado that feared the oil companies would run roughshod over their ability to decide when and where ditch crossings would take place.

The major opposition in the April 25 hearing came from Colorado Counties, Inc., which represents the state’s county commissioners. According to Weld County Commissioner Barbara Kirkmeyer, who testified on their behalf, the bill would grant oil companies eminent domain rights, and “that’s what we’re afraid of.” “We’re no stranger to oil and gas,” Kirkmeyer said, with 80 percent of the state’s oil and gas in Weld County and 20,000 active wells. That activity represents a substantial part of Weld County’s tax base.

As a result, Kirkmeyer said it took some by surprise at the CCI meeting when she asked them to oppose SB 191. Approximately 40 of Colorado’s 65 counties were represented at the CCI meeting, and they voted unanimously to oppose the bill, she said. “This infringes on private property rights,” Kirkmeyer explained. And despite the Supreme Court ruling that said the pipeline companies did not have eminent domain rights, according to Kirkmeyer some companies are still threatening condemnation when they can’t get their way on pipeline easements. Kirkmeyer told the committee an oil pipeline company last June threatened a landowner and Weld County with condemnation after both refused to grant permission for a 12-inch line. The Supreme Court’s ruling had taken place a month earlier.

It’s not appropriate for oil and gas companies to have eminent domain, Kirkmeyer said, because they aren’t utilities nor are they regulated like utilities. Kirkmeyer has had first-hand experience with a company attempting to put in pipelines on her property. She said Suncor wanted to put in a 20-inch high-pressure gas line on her property, and despite being told to stay off her land, last year company representatives trespassed on her property to do a survey for that line. “That’s the arrogance, bullying and intimidation tactics they use,” she said. “It’s not the right way to treat property owners.” The committee also heard from Donna and Ivar Larson, the plaintiffs in the Supreme Court case, who said they would not benefit from the bill’s defeat. Their interests are on public safety, Donna Larson said. Pipelines are a proper way to transport hazardous materials, she said; the question is where to put them.

The Larson case involved an easement originally for a 1963 six-inch line near Johnstown. In subsequent years a housing development was built near the line, with the closest house 25 feet away. The second line, a 10-inch line that transports 3 million gallons of jet fuel per day, became the subject of the lawsuit when Sinclair sued for an additional easement. That second line was put in 36 feet from the nearest home, despite a Sinclair brochure that said they would never build a line closer than 100 feet. The six-inch line has since been removed by court order. Donna Larson told the committee that if they decide to pass SB 191, a permit should be required for pipeline sitings as a matter of public safety and could be granted either by the Public Utilities Commission, the Colorado Oil and Gas Conservation Commission or other public agency. The bill should also ensure that property owners receive just compensation for all the land affected by the pipeline, she said.

The pipeline companies brought in powerful support from former Speaker of the House Terrance Carroll, an attorney with Greenberg Traurig who represents the Colorado Petroleum Association. He called the bill a “battle of the comma,” a reference to supporters’ initial insistence that the bill was merely fixing a comma problem. Carroll provided legislators with a history lesson on the statute in question, how punctuation in statutes should be interpreted and on the federal regulations regarding pipelines. He disagreed with testimony that said there was no regulation regarding federal pipelines, citing two federal agencies that he said are tasked with public safety for pipelines. Carroll asked the committee to not let a few “bad negotiators” impact what should be a narrow fix to the problem.

Rep. Randy Fischer (D-Fort Collins) asked Carroll about whether federal regulations require a safe distance between pipelines and homes. Carroll called the current regulations, updated in 2011, an “apples and oranges” comparison to what happened in the Larson case. He added that he did not believe pipelines would be built that close under the new regulations. He did not, however, say how many feet the regulations specify. But questions from the committee’s Democrats began to show that they were uncomfortable with what they were hearing. “A discussion of punctuation doesn’t help with this bill,” Fischer said. “We’re creating an 800-pound gorilla. This [bill] creates a major change in statute,” not just a change to a comma, he told Carroll. Fischer later suggested the issue go to an interim legislative committee. “I’m afraid we are about to make sweeping changes in statute, and [I] would be interested in pursuing a regulatory framework.”

Even committee Republicans who supported the bill questioned whether it was appropriate, including Rep. Perry Buck (R-Fort Collins) and Rep. Justin Everett (R-Grand Junction), who said he would vote for the bill and work on a fix when it reached the House floor. “There are serious issues with this bill,” said committee chair Rep. Max Tyler (D-Lakewood). “This gives eminent domain rights to the companies without any guardrails.” Tyler proposed an amendment that put the eminent domain rights into the hands of the county commissioners or other affected municipalities rather than the pipeline companies. The committee approved the amendment on a party-line 8-5 vote, and it produced an immediate response. Jep Seman, a lobbyist for the Colorado Petroleum Association, quietly spoke to Sonnenberg; moments later, Sonnenberg asked the committee to kill the bill.

Kirkmeyer said after the hearing that the oil pipeline companies would not want the local governments to have the power that the Tyler amendment granted. The Larsons told this reporter they got the outcome they hoped for and were very pleased with the bill’s defeat.

Access and Flooding

A road improvement project took frontage of a commercial enterprise. The condemnor offered $115,000 in damages. Engineering analysis showed the consequential elimination of access of large trucks and also showed flooding as a result of a faulty drainage design. The matter settled, without litigation for $156,000.

Commonwealth Pipeline Project Postponed

The following was posted on the Commonwealth Pipeline website: (www.commonwealthpipeline.com.) The sponsors of Commonwealth Pipeline have suspended development of the project.  We will be updating the website periodically to provide current information regarding the project’s status.  Thank you for your continued interest and patience. 

The following is some background information on this project posted in The Mercury by Sara Mosqueda-Fernandez, posted on April 18, 2013

The proposed 120-mile-long Commonwealth Pipeline project, scheduled to run from Lycoming County to pipelines in southeastern Pennsylvania, has been suspended indefinitely. The announcement was posted on the project’s website, www.commonwealthpipeline.com   .

According to earlier presentations, the pipeline was expected to travel through North Coventry, South Coventry, Warwick and West Vincent townships. The 30-inch pipeline would also cross at least four “exceptional value” streams throughout the northern part of Chester County, including French Creek and Rock Run Creek, on the way to a compression station in Upper Uwchlan. Other affected areas would include the Hopewell Big Woods, French Creek State Park, Warwick County Park, Ryerss’ Farm for Aged Equines and Ludwig’s Corner.

Part of the pipeline would also be interred next to the Weatherstone development, which hosts 270 homes, a library and an elementary school.

While representatives for the project had reached out to municipalities to discuss the proposed project, the next step, pre-filing with the Federal Energy Regulatory Commission, was not taken prior to the project’s suspension.

The pipeline was supported by three major partners: Inergy Midstream LP, which develops and operates natural gas and natural gas liquids storage and transportation; UGI Energy Services Inc., which owns 14.7 billion cubic feet of underground natural gas storage in north central Pennsylvania and is developing projects throughout the Marcellus Shale area; and WGL Holdings Inc., a natural gas utility and marketing firm.

Lynda Farrell, executive director of the Pipeline Safety Coalition, a nonprofit that seeks to inform the public about pipeline issues, said she was informed by a representative of Inergy that while some basic routes for the project were explored, there are no detailed routing plans and there is currently no further route work.

A project representative, who asked to remain unnamed, said the suspension was because the market for the proposed pipeline has not been developed.

The project garnered significant attention from both residents and elected officials. Both the Chester County Board of Commissioners and State Rep. Tim Hennessey, R-26th, of North Coventry, wrote letters to the Federal Energy Regulatory Commission, asking that the potential harm to the Big Woods be given serious consideration.

“The Big Woods are an ecological marvel of significant scientific research value as it currently exists,” said the letter. “While we realize that all development comes at a cost, it seems to us that the harm to the Big Woods is simply too steep a cost to pay.”

A date for the resumption of pipeline planning has not been announced.

Sunoco Pipeline Coming to Southwestern Pennsylvania

As of April, 2013 Sunoco Logistics is attempting to purchase easements for a fifty (50) mile pipeline in Southwestern Pennsylvania from Chartiers to Delmont. Sunoco has asserted that it possesses the right of eminent domain for the pipeline. Property owners are urged to be cautious in protecting their property rights. The Sunoco filings with the Federal Energy Regulatory Commission (FERC) do not provide the power of eminent domain for this pipeline. Property owners approached by Sunoco Right-of-Way agents are encouraged to retain an experienced eminent domain attorney to protect property rights.

Relocation Benefits after 72 years in her home….

Clara was 100 years old and had lived in her home for 72 years when her home was condemned for a road improvement project. The condemnor offered $120,000 for the value of the real estate. The condemnor failed to offer relocation benefits as provided for in the Pennsylvania Eminent Domain Code and in Federal Regulations. The condemnor later agreed with the eligibility for relocation benefits, but insisted on low benefits based upon Clara moving by herself to a similar, single-family home. Eventually, the condemnor agreed that the requirement of “decent, safe and sanitary” housing required payment for an assisted living relocation to satisfy the safety requirement. The matter settled at $207,000. Clara, at the age of 101, comfortably moved into her choice of an assisted living facility.

Negotiations Save Convenience Store

A bridge project led to a $230,000 offer for a convenience store property. The
acquisition would have taken one-third of the corner lot and a temporary construction
easement over the remaining land along with demolition of the store. The lot would
have become and economic remnant. Negotiations led the parties to agree with the
owner’s demolition of a small part of the building with reconstruction. The owner was
able to retain a building and the convenience store business. Additionally, financial
compensation of $244,000 was paid.