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.

The California legislature is considering a bill that could increase the likelihood condemnees will be reimbursed its litigation expenses. Under the current law, a condemnee can recover litigation expenses, such as attorneys’ and experts’ fees, if a court finds that the condemning agency’s final offer of compensation was unreasonable and that the final demand of the condemnee was reasonable when considering the compensation ultimately awarded. AB 408 provides that if the condemnor’s offer is lower than 90 percent of the compensation awarded, the court must award litigation expenses.   That bill is still in committee.

I tried an eminent domain case last week in Bucks County, PA. The condemnor – the PA Turnpike Commission – alleged the property was worth $850,000. We alleged on behalf of the property owner that the property was worth $2.3 million. The jury deliberated for 3 hours and came back with a verdict of our exact amount – $2.3 million. I am thrilled for my clients who are great people.

The NC House is considering a bill that would result in an eminent domain amendment to the NC Constitution. House Bill 3 would place the amendment on the November 2018 ballot. The bill would not allow private property to be taken by eminent domain, or to be condemned, except for public use. The bill does not define public use. The US Constitution and many states have similar requirement.

Another bill adds communications and natural gas facilities and pipelines to those projects for which eminent domain is allowed for infrastructure projects. In cases where public use is permitted, HB 3 would require “just compensation” be paid and the amount determined by a jury if requested.

The NC House has submitted similar bills at least five previous times since a the 2005 U.S. Supreme Court Kelo decision. However, none were enacted by both houses.

Indiana is considering a bipartisan eminent domain bill. House Bill 1260 made it out of the House of Representatives with a 95-0 vote and is expected to go before a Senate committee Monday. The bill is in response to a proposed freight train line by Great Lakes Basin Transportation. The proposed bill, which would take effect July 1 if it makes it out of the Senate and Gov. Eric Holcomb signs it, states that any rail line must follow Indiana’s incorporation rules, and a rail line must show the end result would be good for a community. It also amends appraisal related requirements.

I tried a case in York County, PA in July involving a condemnation of the former York County Prison. My clients purchased the property in the ‘80s and were waiting for the right time to develop the property when it was taken by the City of York RDA.

The RDA claimed it was worth about $65,000. We presented evidence that the property was worth $1,250,000.

After less than ½ hour, the Jury returned a verdict of $1,250,000 – the full amount we alleged.

Unfortunately, the RDA chose to file post-trial motions to set aside the verdict. However, the Judge rejected each and every argument. He found that the verdict was well supported by “thorough and credible” evidence. Once again, it was very gratifying to see that the Judge and Jury agreed with our evidence and we hope the RDA will now pay what our clients rightfully deserve.

The N.C. Court of Appeals has issued a stay of a Forsyth County Superior Court Judge’s order directing the N.C. Department of Transportation to make payments to property owners in the path of the Winston-Salem Northern Beltway. Forsyth Superior Court Judge John O. Craig entered an order would have set in motion a procedure for the DOT to begin paying landowners who won an inverse condemnation ruling last June from the N.C. Supreme Court.

The State’s motion argued that Judge Craig’s order would require the state to “make unauthorized expenditures of public funds.”  That order requires N.C. to deposit funds equaling the estimated value of the lands allegedly taken which the property owners could withdraw at will.