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Jobs or Horses? Understanding Eminent Domain in the Face of the Nexus Pipeline

By August 2, 2017No Comments

Pipeline over a body of water and factories on the landProperty disputes, generally speaking, are not “exciting” news. They can be challenging, and often require quite a bit of paperwork and documentation, but in the end, both parties reach a resolution, and the world moves on. When one of those parties is the US government, however, a simple property dispute can become anything but.

A 74-year-old land owner named Tom West is currently battling DTE Energy Co. and Enbridge Inc., the energy companies developing the Nexus pipeline. It is not that he opposes the jobs that the pipeline promises to bring: it is that “The pipeline is expected to rip through the former horse breeder’s 5-acre property here in northeastern Ohio, passing within 150 feet of the white Cape Cod house that he and his wife, Ruth, built more than 40 years ago, knifing through an area where the Wests buried seven horses and family pets.”

Aside from concerns about groundwater contamination and potential gas explosions – risks typically associated with any gas pipeline project – what Mr. West also fears is eminent domain: the right of a government to take over private property for its own use, in exchange for “just” compensation. Under the 5th Amendment, the federal government may take private land from an individual provided that it will benefit the public. In this case, building the pipeline – which proponents say will create jobs in Ohio and Michigan, bring in more than $830 million in revenue, and eliminate the area’s dependence on coal – could be labeled beneficial to the public, thus rendering Mr. West’s property subject to eminent domain.

Ohio has specific laws governing this process

The Ohio Constitution granted the power of eminent domain to the state back in 1851 (article 1, Section 19):

“Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

Chapter 163.01 of the Ohio Revised Code states that “’Public use does not include any taking that is for conveyance to a private commercial enterprise, economic development, or solely for the purpose of increasing public revenue, unless the property is conveyed or leased” to, for example, “A public utility, municipal power agency, or common carrier.”

Challenging eminent domain in Ohio

Senate Bill 315 might offer a way out for Mr. West and other landowners in a similar position, as pipeline companies that move natural gas liquids out of state are not considered public utilities. We bring this up because there is hope for landowners who want to challenge a government’s “right” to eminent domain.

But challenging either the State or the U.S. government’s exercise of eminent domain power is not easy. Your attorney will need to prove that either A) the government does not have a valid reason for taking your land, or B) the land the government is attempting to take is in excess of what it actually needs. You might also be able to challenge the taking based on zoning ordinances, but the likelihood of a successful challenge will be low.

Arguing that the amount of compensation offered to you is unjust will not, however, halt an eminent domain proceeding: all it can do is slow the process down. If we assume that the local or federal government is like the average real estate purchaser, then it is also safe to assume that the original offer for your land will be lower than what you might expect. This is one of the reasons you want a real estate attorney on your side if the government wishes to take or condemn your property through eminent domain. After all, as a property owner you have a right to the fair market value for your property that the law requires. If the property owner and the government cannot agree on the amount of just compensation, the issue of fair market value can be resolved in court.

Land disputes are challenging; choosing the right law firm to represent you does not need to be. The Gertsburg Law Firm proudly represents property owners throughout Ohio. To learn more about our services, please call 440-571-7777 or fill out our contact form, and reserve a consultation at one of our offices in Chagrin Falls or Cleveland.

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