METRO NEW JERSEY CHAPTER OF THE APPRAISAL INSTITUTE

Slides:



Advertisements
Similar presentations
Right of Way Acquisition Process Jesse W. Smith Right of Way Manager.
Advertisements

AASHTO 2005 Right of Way and Utilities Conference Austin, Texas Acquisition Alternatives and Eminent Domain.
1 PENDING FERC ISSUES RELATING TO THE ALASKA NATURAL GAS TRANSPORTATION PROJECT Presentation by Karol Lyn Newman Morgan, Lewis & Bockius, LLP November.
Agency Drafts Statement of Scope Governor Approves (2) No Agency Drafts: Special Report for rules impacting housing Fiscal Estimate.
BOARD OF COUNTY COMMISSIONERS DECEMBER 11, 2012 CELEBRATION POINTE COMMUNITY DEVELOPMENT DISTRICTS.
© 2007 Morrison & Foerster LLP All Rights Reserved Attorney Advertising The Global Law Firm for Israeli Companies Dispute Resolution in the United States.
Conservation Commissions and the Kinder Morgan Proposed Gas Pipeline PRESENTATION TO NORTHEAST MUNICIPAL GAS PIPELINE COALITION SEPTEMBER 22, 2014 MASSACHUSETTS.
WHO’S IN CHARGE? 70,000 MILES OF PROPOSED PIPELINES IN OHIO? AN INFORMATION SESSION Pipeline Impact on Ohio Landowners Michael M. Hollingsworth, Attorney.
______________ Eminent Domain, Condemning Real Property In Federal Court; A Wisconsin Perspective ______________ Eminent Domain, Condemning Real Property.
1 Transmission Lines & Pipelines: Routing-Condemnation- Easements Wednesday, May 28, 2014 Texas Association of Realtors.
When to Purchase Access Rights versus When to Exercise our Police Power in Lieu of Purchasing. Mike Roach WisDOT Access Management Engineer May 15, 2013.
FISCAL STUDIES: LEGAL BASIS John R. Molitor Attorney.
Carbon Capture and Storage State Legislation Kathy G. Beckett Midwest Ozone Group January 22-23, 2009.
Procurement Lobbying Legislation New York State Bar Association December 9, 2005 (revised January 4, 2006)
Copyright © 2004 by Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany BUSINESS LAW E-Commerce and Digital Law International Law and Ethics.
THE LEGAL ENVIRONMENT OF BUSINESS © 2009 Pearson Education, Inc. publishing as Prentice Hall Ch The Legal Environment of Business A Critical Thinking.
Condemnation Proceedings, Public Purpose, and Changes to Eminent Domain Law Robert B. Neblett Jackson Walker L.L.P. 100 Congress, Suite 1100 Austin, Texas.
The Polanco Redevelopment Act By: Richard G. Opper (619)
Water and Wastewater Certification 1 Water & Wastewater Reference Manual.
June 12, 2014 Anthony F. DellaPelle, Esq., CRE® McKirdy & Riskin, PA.
Obtaining and Expanding Pipeline Capacity in the Shale Oil and Gas Revolution The Denbury Decision – Its Impact on Pipeline Construction and How the Legislature.
Incorporation & Annexation Incorporation: establishment of city as legal entity –Reasons: provide town services (streets, law enforcement, water/sewer,
Franchise Quest RegulationsRouteFranchiseExhibits Eminent Domain Q $100 Q $200 Q $300 Q $400 Q $500 Q $100 Q $200 Q $300 Q $400 Q $500 Final.
WEST VINCENT, WEST PIKELAND, EAST NANTMEAL, GREEN VALLEYS ASSOCIATION CHESTER COUNTY PA PHMSA TECHNICAL ASSISTANCE GRANT Pipelines and People Putting Them.
IRSDA Conference What Do the Amendments to Indiana Code Section Mean to You? Kristina Kern Wheeler, General Counsel Ja-Deen L. Johnson, Consumer.
State Permitting Issues for Wind Developments Southeast and Mid-Atlantic Regional Wind Summit 19 September 2005 Jennifer A. DeCesaro Energy Policy Specialist.
Agency Drafts Statement of Scope Governor Approves Statement of Scope (2) No Agency Drafts: Special Report for rules impacting housing
Federal Energy Regulatory Commission The FERC Regulatory Process Dennis H. Melvin, Esq. Director – Legal Division (OAL) Federal Energy Regulatory Commission.
School Law and the Public Schools: A Practical Guide for Educational Leaders, 5e © 2012 Pearson Education, Inc. All rights reserved. Chapter 1 Legal Framework.
4-1 Chapter 4— Litigation REED SHEDD PAGNATTARO MOREHEAD F I F T E E N T H E D I T I O N McGraw-Hill/Irwin Copyright © 2010 by The McGraw-Hill Companies,
Court Procedures Chapter 3.
Background Claremont residents and officials have voiced concerns over the water rate increases imposed by the Golden State Water Company (GSWC). On average,
Principles of International Commercial Arbitration Allen B. Green McKenna Long & Aldridge, LLP.
Participation and Intervention before the FERC October 2007.
Local Powers for Land Use Regulation. Local Land Use Powers Land use regulation is considered a residual power –In most circumstances, that is… –Power.
Real Estate Investment Chapter 2 Land Use Controls © 2011 Cengage Learning.
2015 NW Regional Right of Way Conference Legal Updates – Tuesday October 27 th Scott Henderson – Project Manager.
1. Land Conservation Act (LCA) * Public Agency Webinar Public Acquisition Notification Procedure – A Step by Step Guide * LCA, also known as the Williamson.
ARE 309Ted Feitshans07-1 Unit 7 Constitutional Limitations Regulatory Takings: Condemnation, Regulation and Impermissible Takings of Private Property.
After-the-Fact Conservation Area Impact Permit Request* Keene’s Pointe Community Association, Inc. District 1 November 1, 2011 *Postponed from the December.
LEGAL ISSUES INVOLVING APPARENT ROAD RIGHT OF WAY March 8, 2011 JASON P. LUEKING BAMBERGER, FOREMAN, OSWALD & HAHN, LLP Capital Center, 201 N. Illinois.
Federal Energy Regulatory Commission 1 Overview of the Federal Energy Regulatory Commission (FERC) Roland W. Wentworth Office of Markets, Tariffs and Rates.
Western Area Power Administration Land Acquisition Discussion May 11, 2016.
INTERSTATE PIPELINE FORUM Presented by: Rebecca F. Zachas, Esq.
ND League of Cities Sept. 17, 2016
Sources of the Law Constitutional Law Statutory Law Administrative Law
Essential Requirements of the Uniform Act for Local Public Agencies
INTRODUCTION TO THE COURT SYSTEM
Chapter 3 Administrative Law Chapter 3: Administrative Law.
U.S. Legal System Chapter 1.
Procurement Lobbying Legislation New York State Bar Association
Rules of Superintendence Applicable to Guardianships
Property Acquisition, Eminent Domain and Relocation The Redevelopment Training Institute October 5, 2016 Presented by John H. Buonocore, Jr., Esq. Anthony.
Anthony F. DellaPelle, Esq, CRE®
NAVAJO LAW SEMINAR October 14, 2016
Right to Take Issues and Dilemmas
Regulatory Enforcement & Citizen Suits in the New Administration
Right of Way – Eligible for State Aid Reimbursement
Public Service Commission of West Virginia
Michigan Dept. of Environmental Quality Water Resources Division
Missouri Association of Rural Education
Antitrust Class Action related to EDF Whitepaper
Unit 13 ARE 306 Regulatory Takings: Condemnation, Regulation and Impermissible Takings of Private Property.
FLOW CHART 1 Foreign Reciprocating Country (FRC) Seeks Paternity Establishment Through State IV-D Agency When Noncustodial Parent (NCP) is Living on a.
Chapter 6 Powers and Functions of Administrative Agencies.
Eminent Domain.
The Legal System.
Chapter 23 Government Regulation and Administrative Law

The Metro New Jersey Chapter of the Appraisal Institute
Presentation transcript:

METRO NEW JERSEY CHAPTER OF THE APPRAISAL INSTITUTE 81st Annual Princeton Conference – April 28, 2017 “Pipeline Easements and Issues” Victor D. DiSanto, MAI - Moderator Sterling, DiSanto & Associates Michael J. Ash, Esq. DeCotiis, Fitzpatrick, Cole & Giblin, LLP Anthony F. DellaPelle, Esq., CRE McKirdy & Riskin, PA Maurice Stack, MAI, CRE, FRICS Stack, Coolahan & Stack

HISTORY HOT ISSUES 1. Keystone Pipeline Public utilities are required infrastructure Older developed areas require upgrades/expansion Newer developing areas need services Local agencies can be condemnors AND condemnees HOT ISSUES 1. Keystone Pipeline Wind Farms Solar Farms Gas Pipelines Water Rights

Public Utilities and the Eminent Domain Power Public Utilities can exercise eminent domain Statutory Grant Natural Gas Act (NGA), 15 U.S.C. 717F(h) New Jersey -- N.J.S.A. 48:3-17.7 Local authorities normally created by state legislation Requires Administrative/Regulatory Approval Limited Authority Prior Public Use Doctrine

Public Utilities and Eminent Domain Power Public Utilities can exercise eminent domain Statutory Grant Requires Administrative/Regulatory Approval Application for certificates shall be made in writing to the Commission, be verified under oath, and shall be in such form, contain such information, and notice thereof shall be served upon such interested parties and in such manner as the Commission shall, by regulation, require. Natural Gas Act (NGA), 15 U.S.C. 717F(h) The power of condemnation shall not be used or enforced by any such public utility . . . [e]xcept where a governmental agency having jurisdiction has granted the utility the permission to take or acquire property or any interests for the utility's purposes the power of condemnation shall not be used or enforced by any public utility until and unless such utility shall have applied to the Board of Public Utility Commissioners. . . . N.J.S.A. 48:3-17.7. Limited Authority Prior Public Use Doctrine

Public Utilities and Eminent Domain Power Public Utilities can exercise eminent domain Statutory Grant Requires Administrative/Regulatory Approval Limited Authority Limited to designated area and properties. Subject to restrictions imposed by statute and/or regulation Must compensation precede the taking? Is preliminary entry authorized? Consideration of jurisdictional issues for regional, interstate and international projects Prior Public Use Doctrine

Public Utilities and Eminent Domain Power Public Utilities can exercise eminent domain Statutory Grant Requires Administrative/Regulatory Approval Limited Authority Prior Public Use Doctrine The general rule is that a private company that has been authorized to exercise general eminent domain powers cannot do so on land that has already been devoted to public use. State Highway Commission v. Hoester, 362 S.W. 2d 519 (Mo. 1962) See U.S. v. Carmack, 329 U.S. 230 (1946), which contains dictum suggesting that eminent domain authority delegated to private entities (such as utility companies) is limited and therefore subject to a more stringent standard of review than similar delegations to governmental actors. Examples and exceptions : Will a balancing test be used? See Texas Eastern v. Wildlife Preserves, Inc., 225 A. 2d 130 (N.J. 1966) Water company’s rights not exclusive. City of Raton v. Raton Ice Co. 191 P. 518 (N.M. 1920)

Public Utilities and Eminent Domain Power Choice of Forum Federal Law and Court – Penn East Federal Statute authorizing project and condemnation Regulatory process through FERC Federal court and jurisdiction Disclosure requirements Litigation process – no jury trial and different procedures State Law and Court – South Jersey Gas State statutes authorizing project and condemnation Regulatory process through BPU State court and procedures Safeguards to property owners through Eminent Domain Act

Federal Law and Court – Penn East Public Utilities and Eminent Domain Power Federal Law and Court – Penn East Federal Statute authorizing project and condemnation Natural Gas Act (NGA), 15 U.S.C. 717f(c)– authorizes the “construction or extension of facilities…for the transportation of in interstate commerce of natural gas Pipeline company must demonstrate actual need for project through contracts with shippers and customers Must receive Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission (FERC) 15 U.S.C. 717F(h) – provides authorization for acquisition of property by condemnation Regulatory process through FERC Federal court and jurisdiction Disclosure requirements Litigation process – no jury trial and different procedures

Federal Law and Court – Penn East Public Utilities and Eminent Domain Power Federal Law and Court – Penn East Federal Statute authorizing project and condemnation Regulatory process through FERC Pre-Filing – public informational hearings with public comment and input from property owners and government stakeholders Environmental Review – NEPA/EIS - due diligence including: route studies; field surveys; wetlands delineations and alternatives/benefits analysis FERC Certificate – approves a 50 foot Right-of-Way and facilities for project, authorizes condemnation, includes conditions on construction Post-Certificate Proceedings – Application for FERC re-hearing in federal court Federal court and jurisdiction Disclosure requirements Litigation process – no jury trial and different procedures

Federal Law and Court – Penn East Public Utilities and Eminent Domain Power Federal Law and Court – Penn East Federal Statute authorizing project and condemnation Regulatory process through FERC Federal court and jurisdiction Condemnation in Federal Court – US District Court of NJ FERC Certificate Pre-Empts State and local regulations including zoning Construction and Operation in accordance with Pipeline and Hazardous Materials Safety Administration Disclosure requirements Litigation process – no jury trial and different procedures

Federal Law and Court – Penn East Public Utilities and Eminent Domain Power Federal Law and Court – Penn East Federal Statute authorizing project and condemnation Regulatory process through FERC Federal court and jurisdiction Disclosure requirements Offer letter required – no duty to negotiate in good faith in most jurisdictions including NJ No requirement for appraisal No minimum of 14 days for negotiations No survey required Public Purpose if Property is Within FERC Certificated route Litigation process – no jury trial and different procedures

Tract HUD 98.3

Federal Law and Court – Penn East Public Utilities and Eminent Domain Power Federal Law and Court – Penn East Federal Statute authorizing project and condemnation Regulatory process through FERC Federal court and jurisdiction Disclosure requirements Litigation process – no jury trial and different procedures Notice of Condemnation , Complaint, and Order of Taking No “quick take” – motion for summary judgment or preliminary injunction depending on jurisdiction Valuation Litigation Burden of Proof is on Property Owner Jury trial, bench trial, or Commissioners’ Hearing Federal Substantive Law applies – Yellow Book

Penn East Pipeline Status: Final Environmental Impact Statement Approved by FERC on 4/7/17

State Law and Court – South Jersey Gas Public Utilities and Eminent Domain Power State Law and Court – South Jersey Gas State statutes authorizing project and condemnation N.J.S.A. 48:3-17.6 Regulatory process through BPU State court and procedures Safeguards to property owners through Eminent Domain Act

State Law and Court – South Jersey Gas Public Utilities and Eminent Domain Power State Law and Court – South Jersey Gas State statutes authorizing project and condemnation Regulatory process through BPU Regulated Utility files a Petition for acquisition of properties in furtherance of a new project BPU holds public hearings, accepts briefs, discovery, and hears testimony from the petitioner, the Board’s staff, and often the Division of Rate Counsel (N.J.A.C. 1:1-16.3) BPU or OAL makes a determination of necessity that an acquisition is “reasonably necessary” State court and procedures Safeguards to property owners through Eminent Domain Act

State Law and Court – South Jersey Gas Public Utilities and Eminent Domain Power State Law and Court – South Jersey Gas State statutes authorizing project and condemnation Regulatory process through BPU Regulated Utility files a Petition for acquisition of properties in furtherance of a new project BPU holds public hearings, accepts briefs, discovery, and hears testimony from the petitioner, the Board’s staff, and often the Division of Rate Counsel (N.J.A.C. 1:1-16.3) BPU or OAL makes a determination of necessity that an acquisition is “reasonably necessary” State court and procedures Safeguards to property owners through Eminent Domain Act

State Law and Court – South Jersey Gas Public Utilities and Eminent Domain Power State Law and Court – South Jersey Gas State statutes authorizing project and condemnation Regulatory process through BPU State court and procedures Acquisitions in accordance with Eminent Domain Act Good faith negotiations Property owner has right to accompany appraiser Must have appraisal report No “take it or leave it” offers At least 14 days of negotiations Complaint is filed in County where property is located Safeguards to property owners through Eminent Domain Act

State Law and Court – South Jersey Gas Public Utilities and Eminent Domain Power State Law and Court – South Jersey Gas State statutes authorizing project and condemnation Regulatory process through BPU State court and procedures Safeguards to property owners through Eminent Domain Act Good Faith Negotiations Limitations on Exercise of Eminent Domain by Private Corporations No statutory right to preliminary entry No statutory right to “quick take” – possession only after deposit of Commissioners’ award Right to jury trial on just compensation

South Jersey Gas Pipeline Status: Approved By BPU and Pinelands Commission; Under challenge By Sierra Club

Public Utilities and Eminent Domain Power Valuation Issues Partial Takings Value of property actually acquired. Easements and the “bundle of rights” Difference between property value “before and after “taking. Route selection and location of taking within remainder of properties can be critical Just compensation vs. public relations Question: Is a property with a sewer or gas connection more valuable, or does the easement burden devalue the property? Consider project influence implications. View Fear

Public Utilities and Eminent Domain Power Valuation Issues Partial Takings View Requires at least partial taking - PSE & G v. Oldwick Farms, 308 A. 2d 362 (N.J. App. Div. 1973). Compare loss of view vs. loss of visibility. Keinz v. State, 156 N.Y.S. 2d 505 (N.U. 1956)(damages may be awarded when owner’s view out from property has been impaired but not when visibility into property is diminished) Fear

Public Utilities and Eminent Domain Power Valuation Issues Partial Takings View Fear Appeal of Giesler, 622 A. 2d 408 (Pa. 1993)(despite lack of scientific evidence that electric lines may create health risk , public perception is relevant in determining damages) Criscuola v. Power Auth. 621 N.E. 2d 1195 (N.Y. 1993)(public fear and subjective believes of buyers regarding power lines is irrelevant unless objective market evidence exists )

NJTA v. 100 West Manor Way

NJTA v. 100 West Manor Way

NJTA v. 100 West Manor Way

Nobody wants them: But everyone is unhappy when: