Eminent Domain and Natural Gas Pipeline Easements: Valuation and Right To Take Issues
by Thomas H. Peebles, IV
IT IS TRUE that established energy corridors
attract additional utilities. Power line corridors may represent an attractive
route for natural gas transmission lines, just as established natural gas lines
often seem to attract additional natural gas pipelines thereafter.
Landowners along these corridors may feel beleaguered as
additional utilities are installed across their properties. Whether there are
multiple utilities or just one utility, landowners thoughts usually turn
eventually to two issues: Can I somehow stop this from happening? If not, can I
make the condemnor pay dearly for this imposition?
EFFORTS TO STOP PIPELINES OR OTHER UTILITY PROJECTS Since
utility companies usually have defensible reasons for new projects (e.g., to
comply with federal regulations or extend services to meet demand), it is
usually an uphill struggle to stop or divert such projects. Proving that a
pipeline or other utility project is arbitrary or capricious can be nearly
impossible. There is often a certain degree of arbitrariness with respect to
the route of a utility, but proving capriciousness is another question.
Nevertheless, landowners may challenge the right to take on a number of
bases.
Necessity of the Project?
Landowners frequently question the necessity of utility projects
through their property. In City of Memphis v. Tandy J. Gilliland Family, LLC,
391 S.W. 3d 60 (Tenn. App. 2012), the landowner in a road widening case pointed
out that when he negotiated with the State of Tennessee regarding the widening
of the roadway, the State acquired sufficient property so that the Memphis
Light, Gas, and Water Division could relocate their power lines within the
expanded right of way. The power company, however, did not wish to utilize the
land acquired by the State and refused the State’s offer to relocate power
poles within the new right of way. Instead, Memphis filed suit to condemn an
additional easement outside the State’s right of way for the placement of its
power poles. The landowner argued that this was totally unnecessary. The trial
court agreed.
The Tennessee Court of Appeals overturned this ruling, pointing
out that the trial court improperly substituted its own judgment of necessity
for that reserved to the legislative branch, thus exceeding its authority.
Tennessee law provides that landowners cannot contest questions such as the
utility of an improvement, the choice of route, and the necessity for taking,
because these are legislative questions which the court cannot review.
Tennessee’s Supreme Court refused to review this case.
Timing?
Sometimes, condemning authorities get a bit ahead of themselves
and try to condemn property long before it is truly needed. They fear that
improvements will be placed upon property that is perfect for their future
plans. Taking property too early can be arbitrary and capricious, but there is
no established time period that will be uniformly applied here.
To Read More, Click Here: http://www.wallerlaw.com/portalresource/lookup/wosid/cp-base-4-122602/media.name=/Binder1.pdf