Mike Faherty will serve on the faculty of the National Business Institute Seminar Eminent Domain From Start to Finish. Mike will speak on Settlement Strategies on August 19, 2013 in Harrisburg, Pa. Registration information may be obtained from the National Business Institute at www.nbi-sems.com.
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.
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.
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.
Property owners in Northern Pennsylvania may now be presented with offers for property rights. Such offers are often based on linear foot values rather than the before and after values per the Pennsylvania Eminent Domain Code. Property owners should consult with an experienced eminent domain attorney.
Property owners should check out this pipeline route.
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.
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.
The U. S. Supreme Court has decided a landmark case clarifying that government temporary flooding of property may amount to a taking, or condemnation, of property. This is a strong case in favor of property rights. The Owner’s Counsel of America had submitted an amicus, friend of the court, brief. On the day after the decision, I used that legal authority in written argument in a case involving flooding with water with acid rock drainage from a highway project.
High Court Sides with State Wildlife Agency in
By Peter Urban Stephens Washington Bureau
Corps of Engineers Suit
WASHINGTON – The U.S. Supreme Court on Tuesday rejected the government’s argument against compensating the Arkansas Game and Fish Commission for damages caused by temporary flooding.
In a unanimous opinion, the high court found “no solid grounding in precedent” for setting flooding apart from other government intrusions on property.
The Supreme Court reversed a federal appeals court decision last year that overturned a ruling that would have awarded the Arkansas wildlife agency $5.7 million for hardwood timber lost over six years of summer flooding at the Dave Donaldson Black River Wildlife Management Area in northeastern Arkansas.
“No decision of this court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case,” wrote Justice Ruth Bader Ginsburg.
However, the decision does not guarantee that the commission will be compensated. The justices noted that the government raised several challenges that were not considered by the appeals court. Those challenges remain open for consideration.
“Obviously we are thrilled with the Supreme Court’s decision,” AGFC Chief Legal Counsel Jim Goodhart said. “It’s been a long road to get to this point and we’ve still got a ways to go, but the 8-0 decision sends a strong message about what our agency has been litigating with the U.S. Army Corps of Engineers over the past seven years.”
Property rights advocates hailed the decision.
The Pacific Legal Foundation, which advocates for private property rights, said the Supreme Court had closed a “dangerous loophole in takings law.”
“Simply put, the Takings Clause does not come with a stopwatch. If government commits a taking, including flooding or occupying someone’s land, there is an obligation to pay, period. That obligation doesn’t depend on how long the government uses the property,” the organization wrote on its website.
The National Federation of Independent Business issued a statement supporting the Supreme Court ruling.
“This decision is a victory for small-business owners – farmers and ranchers especially – whose property is essential to their livelihood and the success of their business,” said Karen Harned, executive director of the NFIB Small Business Legal Center. “Temporary government invasions can be costly if left uncompensated.”
During oral arguments in October, Deputy Solicitor General Edwin Kneedler, arguing for the government, said the Army Corps of Engineers should not have to compensate downstream landowners whose property is temporarily flooded.
“It is in the nature of living along a river. Riparian ownership carries with it certain risks and uncertainties, from weather, from intervening causes,” Kneedler said.
Goodhart, the Game and Fish Commission lawyer, argued that flooding should not be treated any differently than any other type of government “taking,” and that in this case there was “substantial intrusion” that demands compensation.
“Apply the rule of law here for physical taking and look at it as the Court of Federal Claims did: Was there a direct physical injury? Did it result in substantial intrusion on the commission’s property? If so … there should be just compensation,” Goodhart said.
As part of a pending civil lawsuit, a Pittsburgh senior federal judge determined that Svonavec Inc. did not establish that it possessed any right to mine the coal under the Flight 93 National Memorial at the time the United States acquired the company’s land by eminent domain, other than eight acres not in dispute.
On Sept. 2, 2009, the federal government acquired Svonavec Inc.’s 275.81 acres in Stonycreek Township by eminent domain for use as the Flight 93 National Memorial. The acquisition was subject to existing easements and certain rights of third parties that included coal mining rights.
Immediately after the Sept. 11, 2001, crash of Flight 93, on which crew and passengers gave up their lives to fight a terrorist takeover of the aircraft, Svonavec Inc. set up a temporary memorial on its property at the crash site. Within weeks the public was using the temporary memorial to honor the heroes of Flight 93. The coal company did not use its land for any other purpose from that date until the United States took ownership of the property on Sept. 2, 2009.
The federal government has the authority to take private property for public use as long as it satisfies its constitutional obligation to provide “just compensation.” In general just compensation means the fair market value of the property on the date it is taken, according to federal case law.
By law, the government must explore all aspects of the value of a property it takes ownership of through eminent domain to determine the amount it needs to pay for the property. Mineral rights are one aspect. “This is a very complex case. The case is still active. The judge’s decision (on the coal mining rights) is just one small issue that is involved in the case,” said Somerset attorney Patrick Svonavec, who represents Svonavec Inc. of Somerset. The federal government did not dispute that Svonavec Inc. owned the 275.81 acres of surface land on Sept. 11, 2001, but it argued that the company did not own the coal underneath. If the court had determined that Svonavec Inc. owned the right to mine coal, the property more than likely would have a higher value. Senior U.S. District Judge Donetta Ambrose agreed with the federal government’s argument.
In the civil action, Svonavec, the defendant, was required to present documentation on the chain of possession of mining rights under the tract. “Defendant relies primarily on missing, unrecorded and incomplete documents to support its chain of title for the alleged coal leases,” Ambrose wrote. “The existence, terms and/or validity of these documents are unknown and unknowable to the court.”
The government believes $611,000 is just compensation for the property. A company official has said he believes that amount is too low. “I anticipate the court will tell us soon a timeline, and hopefully we get it to trial and get a resolution,” Svonavec said. U.S. Attorney Albert Schollaert, who is listed as the attorney on behalf of the federal government, did not respond to a telephone request for comment.
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.