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Eminent Domain: First Principles, Kelo, and In Service of Infrastructure Buildout
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Regulatory Takings and Executive Power to Seize Property
The Michigan Electric Transmission Company, LLC (“METC”), an International Transmission Company subsidiary, has filed two applications for certificates of public convenience and necessity for the construction of major...more
Most private development projects in California trigger some sort of discretionary public approval, whether it be environmental review, zone changes, permits, or other forms of entitlement approvals. As part of that approval...more
This past week I had the opportunity to attend the International Right of Way Association’s (IRWA) Region 1 Fall Forum and Symposium in San Diego, California. On Friday, Brad Kuhn and I presented an update on recent federal...more
The Supreme Court has granted certiorari in George Sheetz v. County of El Dorado, agreeing to answer the question of whether legislatively enacted development impact fees are subject to a lower level of constitutional...more
Planning and constructing large public works projects can take years. When those projects will impact private property, owners are left in a difficult situation, as the cloud of condemnation hangs over their property, making...more
Some might argue that challenging the necessity of an appropriation involving a public utility or common carrier is a futile act, given the presumption of the necessity under R.C. 163.09(B)(1)(c). In State ex rel. Bohlen v....more
Any project involving the exercise of eminent domain includes the strong likelihood that there will be a series of changes during the planning and construction phases. Yet, while construction needs may warrant a change in the...more
Most professionals in the right-of-way industry are generally aware that partial acquisitions may entitle a property owner to receive compensation not only for the value of the land taken, but also for any damages caused to...more
If you know someone with property that borders, is adjacent to, or abuts a natural lake, pond, bay, sea, or ocean, they may have littoral property rights. What that means is they may have the right to build a pier out to the...more
When a public agency is acquiring private property for a public project, typically the key issue in dispute is how much the agency should pay -- what is “just compensation”? ...more
On June 30, 2020, the U.S. Court of Appeals for the D.C. Circuit, sitting en banc, denounced the practice of the secretary of the Federal Energy Regulatory Commission (FERC) in issuing tolling orders, which provide FERC with...more
The Federal Energy Regulatory Commission (“FERC”) can no longer delay judicial review of its orders under the Natural Gas Act by issuing a tolling order that takes no action on a rehearing request other than granting itself...more
On April 1, Nossaman’s Eminent Domain Group hosted a webinar to discuss the impacts COVID-19 is having on the Right of Way industry. First, I’d like to thank the people who attended, many of whom added thoughtful questions...more
COVID-19 has undoubtedly upended the world, including the way we do business and the future of our economy. While our focus should continue to be on the health and safety of our families, friends, and communities, many in the...more
A declaratory order issued by the Federal Energy Regulatory Commission (the Commission) on January 30 in Docket No. RP20-41-000 grants pipeline developers greater certainty in planning and siting construction. The order was...more
In Freeport Reg’l Water Auth. v. M&H Realty Partners VI, L.P., 2019 Cal. App. Unpub. LEXIS 6126 (Sept. 16, 2019), the court walked through a complicated fact pattern involving – in its simplest form – a 40-foot easement for...more
Public infrastructure projects are on the rise, from new transit systems to comprehensive highway renovations and everything in between. Behind the scenes, some governmental body is fast at work acquiring private land along...more
Like the vast majority of general civil litigation, eminent domain matters usually settle before going to trial. The resolution is typically documented in either a stipulated judgment or a settlement agreement. ...more
Construction of Interstate 69 in Indiana seems never-ending. New sections of the interstate have already been completed from Evansville, Indiana to Martinsville, Indiana. Section 6 of the project is just beginning, and it...more
More than 50 years ago, Caltrans purchased roughly 500 homes under threat of eminent domain within the planned right-of-way for the anticipated construction of the I-710 freeway (linking Monterey Park to Pasadena). ...more
In a recent unpublished Court of Appeal decision, Downs v. City of Redding (October 30, 2018), the Court took up two distinct issues: (a) whether a contractor’s use of property for construction staging constitutes a taking...more
Public entities are often faced with the challenging issue of acquiring property for construction projects. Acquiring property can be a lengthy process depending on property owners’ disposition with regard to selling...more
On January 6, the Texas Supreme Court ruled that the Denbury Green Pipeline-Texas LLC (“Denbury Green”) could take private property by eminent domain. In Denbury Green Pipeline-Texas LLC v. Texas Rice Land Partners Ltd., the...more
For years, we’ve been working with our public agency clients during the environmental and design-phase to minimize right-of-way impacts with new infrastructure projects. Yet for many agencies, property acquisitions are an...more