The New Jersey Appellate Division has held that the government can condemn easements for beach projects. In that case, the DEP sought voluntary easements from the landowners as part of a dune-and-berm system spanning the entire 18-mile length of Long Beach Island and 14 miles along Ocean County. The Court rejected the challenges of Ocean County property owners. The Court stated that the question was whether the specific eminent domain law at issue, N.J.S.A. 12:3-64, restricts the DEP to acquiring only a “fee simple” and not an easment. The appeals judges’ decision was based on the plain language of the statute and rejected the landowners’ arguments that the Legislature must have intended to limit the DEP’s authority to acquire only a fee simple.
Tennessee has enacted a law that will prohibit the use of eminent domain to condemn land for industrial parks. It deletes the “industrial parks” exception for takings under 29-17-102 (E), . It also provides that any property taken must fall under the strict definition of “public use” as defined by T.C.A. 29-17-102, which references the Fifth Amendment of the U.S. Constitution and the Tennessee Constitution. In addition, it requires the condemning government body to compensate land owners for engineering fees, appraisal costs, and, in certain circumstances, legal fees that may be the result of a condemnation action. Roads, transportation projects, and utilities are exempt from these costs.
The Texas Senate approved an eminent domain bill intending to expand on current legislation. The bill’s author, State Senator Lois Kolkhorst, said “This bill is designed to build off of Senate Bill 18 six years later as we’ve learned through the process that there are things that can be improved on.”
The bill, SB 740, would require a condemnor to clearly inform landowners that they have the right to speak with a representative of the condemnor and a representative of the Attorney General’s Office, as well as consult with a licensed real estate broker. An offer to purchase land for purposes of eminent domain must be at least 150 percent of the per-acre value as determined in the latest tax appraisal or one based on a certified appraisal. The condemnor would be prohibited from contacting a property owner for three days following the offer to allow time to consider it.
The bill now heads to the Texas House for consideration.
The Georgia Legislature approved legislation allowing local governments to seize blighted property for economic development. House Judiciary Chairman Wendell Willard, R-Sandy Springs, said the change would give cities more options in dealing with persistently blighted areas. However, before a property is taken for an economic development project the condemnor must prove to a judge that the property is blighted and property owners can challenge that allegation.
PA State Senator John C. Rafferty, Jr. has announced that he intends to introduce legislation to aid railroads that may have its property condemned by utilities. He states that “The use of ‘quick take’ condemnation proceedings by a public utility company to avoid legitimate safety and operational concerns is detrimental to public safety and contrary to law. My legislation would provide the railroad industry with the necessary means to ensure public utility companies comply with federal safety regulations and engineering standards in the event a pipeline is proposed or constructed in an active railroad’s right-of-way.”
If passed, the legislation would:
- Ask utility companies to use existing project routes when building on private property
- Require all future routing to take place along boundary or section lines
- Require all projects to avoid impeding irrigation and use agricultural machinery
- Require 60% of all land acquired in eminent domain to be given voluntarily
- Provide tougher restrictions on how the utility company can use the land
- Limit the amount of pounds per square inch the company can put on the land
- Limit the number of times a utility company can apply to the Missouri Public Service Commission in pursuing eminent domain
Both bills are waiting to be assigned to committee.
A Pennsylvania appeals court remanded two cases for new hearings on whether a UGI Corp. subsidiary had properly taken the subsurface rights of private landowners by declaring their properties within a buffer zone surrounding an underground gas storage facility. In Carl Hughes v. UGI Storage Co. and John Albrecht v. UGI Storage Co., a Commonwealth Court en banc panel concluded that there needed to be a more thorough evidentiary hearing on how to apply a recent PA Supreme Court decision regarding the right of natural gas companies to use eminent domain to take property for the storage of natural gas.
UGI is attempting to create a 2,980 acre protective buffer around an underground natural gas storage field. UGI an application with the Federal Energy Regulatory Commission in 2009 seeking authorization for the storage field and protective buffer. The ultimate approval handed down by FERC for the buffer in October 2010, however, only included areas where the company had a stake in property rights. The regulatory agency left the door open for UGI to file further applications to add areas to the buffer zone, but the opinion said that UGI had not done so. Instead, the court said the company “has used and continues to use the benefit of the complete protective … buffer zone.”
The property owners argued that UGI’s actions constituted an improper taking of their properties, preventing them from leasing their subsurface rights for potential gas drilling activity. A Tioga County judge dismissed their claims and found the landowners had not established that a de facto taking had occurred.
After the trial court’s decision, the PA Supreme Court invalidated a portion of a statute that grants certain natural gas companies the right to use eminent domain to take property for the storage of natural or manufactured case. The Commonwealth Court ruled that the implications of that ruling needed to be taken into account as part of the challenge being pursued by the landowners in Tioga County.
Texas State Rep. Justin Holland has submitted a bill seeking to include replacement costs of structures and fencing of a landowner in the original eminent domain appraisals. House Bill 2556 is one of a number of eminent domain bills pending in the Texas state legislature. The Texans for Property Rights Coalition has been encouraging eminent domain reform and support this bill. It consists of 25 organizations including the Texas and Southwestern Cattle Raisers Association, Texas Farm Bureau and the Texas Wildlife Association.
Members of the Arkansas congressional delegation introduced legislation that could prevent construction of a new power line that would go from Oklahoma to Tennessee. If approved, federal officials would need permission from state officials before they could approve the use of eminent domain to build an electric power transmission facility within the state. In addition, the project would have to be constructed, “to the maximum extent practicable,” on federal property. Arkansas Congressman introduced the same legislation in 2015, but it died after passing in the House Natural Resources Committee.
The N.C. House voted 104-9 to approve a ballot question for a constitutional amendment limiting the power of eminent domain. The amendment would ban eminent domain in cases where government seizes property only to sell it to a private developer, by requiring that all property seized be for “public use.” Those uses could include utility infrastructure, roads and government facilities. The US and many state constitutions have similar requirements. The amendment would also give property owners who sue over eminent domain an opportunity to have a jury – instead of a judge – determine how much money they’re owed for the property.
The bill is another attempt in N.C. to address the US Supreme Court’s 2005 Kelo decision. The bill’s sponsor stated, “The Supreme Court said that the states were free to restrict eminent domain more than that, and that’s precisely what we’re doing here.”
The bill now heads to the Senate, and if it passes, the November 2018 election ballot will contain a ballot question seeking the approval of the amendment. An identical bill has already been filed in the Senate and 16 GOP senators have signed on as co-sponsors.