Category: Eminent Domain

New pipeline to impact 961 acres of ag land

Jennifer Kiel/Michigan Farmer – Consumers Energy is seeking to secure rights-of-way across all private property it needs to construct a natural gas pipeline from Flint to Saginaw.

The pipeline will upgrade to 24-inch-diameter pipe from 12- to 16-inch diameter. The project replaces portions of the existing Saginaw Trail Pipeline, originally built in 1942 on what was primarily agricultural land.

However, due to residential and commercial growth around Flint and Saginaw, 25.8 miles of the existing pipeline will be abandoned in place, and 41.9 miles of new pipeline will be installed around Flint and Saginaw, impacting 961 acres of agricultural land and involving 650 landowners in Saginaw, Genesee and Oakland counties. The Saginaw Trail Pipeline, if approved as proposed, will span 94 miles.

Consumers Energy has been communicating with landowners, local government and related organizations, and safety officials along the pipeline route through several channels, including letters, postcards and face-to-face meetings.

The company filed an application and testimony Sept. 2 with the Michigan Public Service Commission, seeking a Certificate of Public Convenience and Necessity to construct and operate the proposed Saginaw Trail Pipeline.

According to Alan Ackerman, managing partner of Michigan-based Ackerman Ackerman & Dynkowski, more than 3,000 notices were sent out to government entities, businesses, landowners and those within 500 feet of the proposed pipeline. Ackerman specializes in representing landowners in eminent domain issues and has been an adjunct professor teaching eminent domain law at the University of Detroit Law School since 1983. He now serves as an adjunct professor at Michigan State University College of Law.

“This pipeline is most likely going through, as I don’t see anyone getting in their way on this,” he says. “Someone would have to prove that there is not a public need for it, but I don’t believe they would be very successful. The Attorney General’s Office can object, but I believe that is unlikely.”

An environmental assessment for the proposed pipeline concluded that construction would have no significant adverse impact on the environment.

5-year project
Consumer Energy plans to begin construction of the Saginaw Trail Pipeline this summer if the proposal is approved and finished in five years.

According to Consumer Energy, the current natural gas landscape favors growth in its demand. The company believes increasing the diameter of the pipeline to 24 inches is in the best interest of customers, because the current transmission system is approaching its pressure and capacity limits under design peak day conditions. The pipeline is also reaching the end of its operational life.

Debra Dodd, Consumers Energy senior public information director, says the project is necessary to enhance reliability and safety for the company’s natural gas customers.

Michigan contractors for goods and services are being used whenever possible for the $636 million project. According to statement from Consumers Energy about agricultural land, open-trench construction will be used where possible and permitted. Boring of the new pipeline will be done under most roadways and where required for environmental reasons. In agricultural and farm fields, the pipeline will be buried at a depth of 4 feet.

Crop damage relief
Consumers Energy will pay 250% of crop damage (to cover four years) to affected landowners.

All farm tiles will be relocated on affected properties. Consumers Energy will repair tiles should damage occur.

Within Consumers Energy’s application it says, “In active croplands, pastures and hayfields, topsoil will be stripped to a typical depth of 12 inches over the entire construction right-of-way. Topsoil will be segregated from the subsoil excavated from the trench to ensure preservation of topsoil. Following pipeline installation, the subsoil will be returned to the ditch, and the topsoil then replaced in the area from where it was stripped to facilitate vegetation growth and crop production.”

Farm disruption, the company says, will be limited to the growing season during the year of construction. Farmland along the project route is expected to return to agricultural use after completion of construction. Agreements will be made with individual property owners of agricultural land to provide compensation for crop damages or losses.

Construction of the pipeline will typically require a 120-foot-wide construction corridor or construction right-of-way, according to the application.

Ackerman says there may be some long-term effects on soils. “It’s possible that many of these landowners don’t understand the extent of the notification they got. No one really wants to be bothered, and it’s not always a question of money. Farmers who are to be impacted should watch this project closely so they are not taken advantage of,” he advises. “Landowners will be compensated on a per foot basis for damage, but each case is individualized.”

Woodland impact
The assessment corridor crosses about 688 acres of woodland. Construction will require the removal of trees to prepare the construction workspace, which is limited to 75 feet.

Trees cleared within the temporary workspace areas will be allowed to regenerate following construction. However, Consumers Energy is required to maintain its pipeline easement to allow visual inspection of its pipeline and to facilitate pipeline repairs, if required. The new pipeline easement will permanently impact about 23.6 acres of woodland.

$134 million project
The project will cost about $134 million and will be completed in time for the winter heating season.

Construction will begin at a Consumers Energy valve site in Saginaw County south of Evon Road and continue south to a natural gas city gate facility near Vienna Road in Genesee County.

GO WIDE: The pipeline will upgrade to 24-inch-diameter pipe from 12- to 16-inch diameter.

About 20 miles of pipeline will be replaced, as well as the rebuilding of three existing city gate facilities. City gates reduce the pressure of natural gas flow necessary to transport it through the pipeline system, so it can be safely delivered via smaller distribution lines to farms, homes and businesses.

A field office for this project is located in Thetford Township at the northwest corner of North Genesee and East Dodge roads on land owned by Consumers Energy. This will allow construction crews to easily make their way north or south to perform work on the pipeline.

A copy of Consumers Energy’s application may be reviewed on the commission’s website or at the office of Consumers Energy Company. For more information on how to participate in a case, contact the commission at 517-284-8090. Additional questions about the project can be directed to Consumers Energy at 844-502-9014.

MDOT sues to seize southwest Detroit church and make way for new bridge to Canada

WXYZ Detroit – A Detroit church says they’re being short changed by the state of Michigan and it looks like a court battle will be needed to figure it out. The state needs the church’s land in southwest Detroit to make way for the new Gordie Howe International Bridge to Canada.

This week, the state filed a lawsuit in their effort to claim the land of the First Latin American Baptist Church on Fort Street in Detroit’s Delray neighborhood.

It’s an iconic place of worship that’s been in the neighborhood for eight decades, but church leaders say they are not being offered enough money to relocate.

The lawsuit shows that the church was offered $411,000 by MDOT. That’s part of any effort to purchase a number of parcels for the bridge project – purchases that are estimated to cost about $370 million.

Under the state’s eminent domain law, a court can now decide how much is paid for the church.

To view the full video, visit WXYZ.

MDOT files to take church for Gordie Howe Bridge project

John Gallagher/The Detroit Free Press – The State of Michigan has filed what appears to be the first lawsuit against a large property owner in southwest Detroit’s Delray district to acquire land for the planned Gordie Howe International Bridge.

The so-called condemnation lawsuit filed this week revealed that the Michigan Department of Transportation offered $411,000 to buy the First Latin American Baptist Church at 6205 W. Fort St. in a “good faith offer” on July 25.

Alan Ackerman, a Bloomfield Hills attorney representing the church, said the offer was too low because the church needs at least $2 million to relocate to a new site nearby and improve it to the same condition as its current location.

Since the church refused the MDOT offer, the State of Michigan filed suit this week to take the property. Under the state’s eminent domain law, the amount to be paid will now be determined in court.

“MDOT is working with the church to provide ample time for relocation prior to the state taking possession of the property,” said MDOT spokesman Jeff Cranson in an e-mail. “MDOT will continue discussions with the church on acquisition issues in hopes of reaching agreement.”

The condemnation lawsuit marks the first of what is expected to potentially be a rash of such legal squabbles over how much MDOT must pay for land in Delray for the Gordie Howe Bridge and its approaches, a U.S. Customs and Border Protection inspection plaza, and connections to I-75.

State officials have said they need to purchase an estimated 673 parcels in Delray for the bridge project at a projected cost of about $370 million. Good faith offers have already been made to a majority of the property owners, many of whom own small residential parcels.

But one of the biggest battles may still lie ahead. The state needs to acquire some portion of a 42-acre trucking terminal at 7701 W. Jefferson that is owned by Ambassador Bridge owner Manuel (Matty) Moroun and his family. Moroun’s son, Matthew, said recently the company would fight any attempt by MDOT to take its property for the Gordie Howe Bridge that will compete with the family’s Ambassador Bridge.

The Gordie Howe International Bridge remains in planning stages. Canadian authorities in charge of the massive project estimate it will open to traffic in late 2020. But delays in moving forward may push that completion date out beyond that.

Morouns aren’t done trying to block Gordie Howe bridge

John Gallagher/The Detroit Free Press – The Moroun family that owns the Ambassador Bridge could soon launch a few legal Hail Marys to try to block or delay the rival Gordie Howe International Bridge — including possibly arguing that the Michigan Constitution prohibits using eminent domain to seize private property for a Canada-led project.

The Moroun family business,  which owns land in the path of the new bridge in the Delray neighborhood,  has multiple legal strategies it could present. It could argue broadly about problems with eminent domain or try to delay MDOT’s seizure of the family’s Delray land, where they run a trucking operation.

John Mogk, longtime professor of development law at Wayne State University, said that under Article X, Section 2  of the Michigan Constitution, Michigan governments can take land under eminent domain for a “public use.” Transferring private property to the Windsor-Detroit Bridge Authority, an entity set up by Canada’s government to manage the bridge project, arguably might not fit the definition of a Michigan public use, he said.

“This is a stretch. I’m not saying if I were on the bench I’d agree with this,” Mogk said, explaining that it was just one potential argument the Morouns might raise. MDOT, he said, could counter that the bridge will be half owned by Michigan and therefore the project fits the definition of a public use.

Matthew Moroun, son of family patriarch Manuel (Matty) Moroun, said this week his family’s bridge company would continue to fight the Gordie Howe Bridge, though he declined to reveal any specific legal strategies.

“We never intended to give up our property without a fight,” he told the Free Press this week. “If they throw a punch we’re going to hold up our hands and defend ourselves.”

For example, the Morouns might contend that moving the trucking operation the family owns in the Delray neighborhood that sits in the path of the planned bridge would be so costly that it would take far longer than currently estimated by the state, ensuring more delays.

Every day the rival bridge is delayed means more business for the Ambassador, which is the only above-ground crossing between Windsor and Detroit. The tunnel under the Detroit River is not suited for truck traffic, so quite often the Ambassador is the only game in town for international truckers and cargo.

Truck terminal

The Morouns, who have fought the Gordie Howe project for many years with lawsuits in the U.S. and Canada, intend to go on battling.

Protecting their land in Delray against seizure by MDOT could be the latest strategy.

On that land, the Moroun family’s Central Transport operates a truck terminal on the 42-acre site at 7701 W. Jefferson. The approaches to the planned bridge must cross their land on the way to the U.S. Customs and Border Inspection plaza to the north. It took years for a bi-national study group to select the route and moving the planned bridge now could add years to the project.

On any given day, dozens of the company’s yellow Central Transport truck trailers are lined up at truck bays at the terminal, transferring shipments for customers such as Walmart. Uprooting that operation, if that is what MDOT determines is needed, would involved paying not only for buying the land but transferring the operation to a suitable new location.

The showdown over the terminal has been expected since 2010, when the Morouns purchased the site from another trucking concern and moved their operations there from Romulus. There has been open speculation ever since that the Morouns were placing their operation intentionally in the path of the future bridge project.

Public use or economic development?

Mogk said another potential Moroun argument might run like this: the Gordie Howe bridge project is less a public use than an economic development project, since planners tout the thousands of construction jobs and increased efficiency of cross-border trade.

That might prove a crucial distinction because a 2004 Michigan Supreme Court ruling known as Wayne County v. Hathcock bars governments in Michigan from taking land from one private owner and transferring it to another private owner just to stimulate economic growth.

Mogk said these were just possible lines of arguments. “The arguments are a bit stretched,” he said. “I’m not sure that they will prevail.”

But that may not be all. Alan Ackerman, a Bloomfield Hills-based attorney who represents property owners whose land is being taken by governments under eminent domain, cited a third possibility. The fate of a little-known industrial railroad line running alongside the Moroun truck terminal might create a legal roadblock.

The Delray Connecting Railroad Co. is operated by U.S. Steel to service its steel plant on nearby Zug Island.

MDOT cannot simply seize the land on which the railroad runs, Ackerman said, since railroads are regulated by the federal government, not state governments. If MDOT needs that land — and it’s not immediately clear that it does — it would have to petition the federal Surface Transportation Board to vacate the line first.

It’s also likely that various federal departments and agencies, including Homeland Security, would have to give permission for the railroad to continue to operate beneath the Gordie Howe Bridge. But when or if that decision might be made is not known.

Whatever legal arguments the Morouns offer, even if defeated in court as it has been in its other lawsuits, the family could profit by delaying the bridge project. Each year’s delay in opening the Gordie Howe Bridge means tens of millions of dollars in toll revenue for the Morouns’ Ambassador Bridge.

Andy Doctoroff, Gov. Rick Snyder’s point man for the Gordie Howe project, said late last week that MDOT, working with Canadian officials, believes that all the land needed for the project will be available in a timely fashion to not delay construction.

This week, MDOT released a brief statement declining to comment on the Morouns’ possible legal arguments.

“Legal disagreements are best discussed in court and not in media stories,” the statement said. “The State of Michigan is confident in its approach to this project, however, and will gladly explain that in court when appropriate.”

MDOT-Moroun showdown looms over land needed for bridge

John Gallagher/The Detroit Free Press – A potential showdown could flare soon between Ambassador Bridge owner Manuel (Matty) Moroun and the State of Michigan over land in southwest Detroit needed for the Gordie Howe International Bridge.

Should Moroun resist selling land he owns for the rival bridge, the Michigan Department of Transportation could go to court and take it under eminent-domain power.

A lengthy court fight would likely ensue over the final price, a fight that could stretch for years. But that wouldn’t prevent the state from seizing the land in the meantime and starting construction. Under state law, MDOT can take land for public projects and battle later in court over the price.

Canadian officials in charge of the Gordie Howe bridge say it could be ready by the end of 2020. But recent delays call that into question, including what appears to many as the slower pace of land acquisition on the Detroit side.

Dwight Duncan, the Canadian official who serves as interim chair of the Windsor-Detroit Bridge Authority, recently blamed “30 problematic properties” in southwest Detroit for holding up the project.

That includes land owned by Moroun, a vociferous opponent of the new bridge because it will draw business away from his privately owned Ambassador Bridge.

Moroun owns the former Yellow Freight truck yard, a 42-acre site at 7701 W. Jefferson that is in the path of the Gordie Howe bridge project. The ramps to and from the bridge would cross directly over a portion of Moroun’s property there.

Moroun can’t delay indefinitely through legal maneuvers, though he could probably make things complicated for awhile.

A spokesman for Moroun said there has been no activity yet involving the land in southwest Detroit.

Alan Ackerman, a longtime attorney who represents property owners facing eminent domain actions, represents several owners in Delray, but not Moroun. He estimates that it takes about 18 months to settle eminent-domain cases. But it can take as little as eight months or as long as five years.

Taking residential properties is easier than commercial because some businesses have to find a new place to operate, he said.

The residential properties also are easier to take because many Delray residents already have said they would be happy to take the government’s offer to buy them out.

Preliminary progress

Andy Doctoroff, Gov. Rick Snyder’s point man on the bridge, said significant preliminary work has been under way for some time, and that good-faith offers have already been made to a majority of the estimated 673 parcels in the Delray neighborhood needed for the project. The state estimates it will cost about $370 million to buy all the land for the Detroit bridge approaches, U.S. Customs and Border Protection inspection plaza, and connections to I-75.

And all other appraisals on all involved parcels are either completed or under way, a necessary step before the state can make purchase offers to property owners, Doctoroff said.

“Within the near term, all good-faith offers will have been made,” Doctoroff said last week, predicting “within the next few months.”

In carefully worded language, Doctoroff predicted that Detroit land acquisition likely won’t be an impediment because construction happens in stages.

Construction proposals coming soon

On the Windsor side of the river, Duncan has issued similar assurances that the project, while taking longer than expected to launch, should soon see significant progress.

Duncan said the request for proposals that will go out soon to three teams vying to build the bridge. Delays in issuing the RFP, which initially was promised late last year, has led to speculation about reasons for the delay.

Officials on both sides blame the complexity of the project, which costs more than $2 billion and involves governments in two nations with different sets of laws.

But officials say the seeming delays mask real progress that has been made.

“Our land acquisition team at MDOT is committed, sophisticated, it’s robust, and it’s spending a lot of time serving the interests of the project because this is a benefit to the entire region in a major way,” Doctoroff said. “There are a lot of people doing a lot of great work on land acquisition.”

No doubt fans of the project will continue to fret and worry until they see construction rising against the skyline. That will take at least another couple of years, though, so until then, or until Canada issues the RFP and MDOT moves publicly to take all the land it needs in Delray, conspiracy theorists will continue to suggest that all is not well.

Politics & Prejudices: Why aren’t they building the new bridge?

Jack Lessenberry/Detroit Metro Times – By this time, earth-moving equipment should be crawling over all the approaches leading to where the new Gordie Howe International Bridge is to rise.

Crews should be working to relocate utility lines as needed. Workers should be signing up for jobs — thousands of good-paying, construction jobs that will last for years.

More than four years ago, in what likely is the best thing he ever will have done as governor, Rick Snyder figured out a way to get around a legislature owned by Matty Moroun, the billionaire who owns the rickety Ambassador Bridge.

Every business interest in both Michigan and Ontario has known for years that a new bridge is essential. This is the two nations’ economically most important border crossing.

Billions in trade, mainly heavy manufacturing components, moves across the old bridge every week. This is stuff that can’t go through the tunnel. There is no backup system; if this bridge fails, it would be devastating to our economy. The structure may indeed be literally falling apart; it sent a shower of concrete into Windsor streets last fall.

On top of that, the Ambassador Bridge is in a lousy place for a major economic trade route. There are more than a dozen traffic lights between the end of the bridge and Highway 401, Canada’s most important freeway. Moroun’s contention that he should be allowed to build a second bridge next to his old one makes no sense logistically or environmentally.

The last thing the people who live in the wretched neighborhoods near the Ambassador need is to breathe more diesel exhaust and suffer through more noise pollution.

The new bridge has now won every approval necessary — presidential, parliamentary, environmental.

Enraged at first that someone was actually trying to make him play fair, Matty Moroun filed federal lawsuit after federal lawsuit attempting to block the new bridge from being built.

The only winners were the lawyers who billed him by the hour. He lost every count on every case. Meanwhile, the Canadians have built a system of beautiful access roads that will swiftly convey traffic from the Gordie Howe directly to 401.

The area is artfully landscaped, and partly concealed barriers are in place to shield residents from noise pollution.

But on this side of the border, nothing — except a little preliminary work at the site of what is to be the future U.S. customs plaza. Two weeks ago, Gregg Ward, the co-owner of the Detroit-Windsor Truck Ferry, took me on a tour of the entire bridge area on both sides of the border. The contrast was huge.

Afterward, over lunch, he sighed. “I’m worried that it is being deliberately stalled,” he said of the bridge.

He’s not alone. Brian Masse, the member of Canada’s parliament who represents Windsor, is suspicious as to whether the new Liberal government led by Justin Trudeau is as committed to the bridge as the Conservative Prime Minister Stephen Harper was before he was defeated last fall.

Masse, who as a New Democrat is a member of neither party, has accused the Windsor-Detroit Bridge Authority of “losing focus,” and was alarmed that Dwight Duncan, the interim head of the authority, has expressed interest in perhaps trying to buy the Ambassador Bridge, which he accurately described as an “aging, crumbling piece of infrastructure.”

(Earlier discussions about buying the bridge collapsed when Moroun insisted on an unreasonable price. Apparently, Canada would buy it not to avoid building a new bridge, but to put an end to Moroun’s interference.)

Ward’s suspicions as to why things are stalled center around Detroit Mayor Mike Duggan, who has been playing footsie for many months with Matty Moroun, who the mayor has made a controversial deal with over Riverside Park.

“Every year this project is delayed means more millions for Moroun,” said Ward. He wonders why the mayor hasn’t signed off to transfer jurisdiction over roads and easements in the area to the bridge authority, so they could begin requiring utilities to relocate lines, etc. as needed for the bridge.

When asked about all this, the Duggan administration’s response was less than reassuring. After two days, I received a response from Jed Howbert, the executive director of the Jobs & Economic Team. “We continue to support the Gordie Howe bridge, and are committed to ensuring the needs of those who live in the community are addressed.”

That raises the question of community benefits, often a sore point when it comes to development in the city.

There’s little question that those who live near developments in Detroit have often been given short shrift when it came to how they were treated. Two different community benefits ordinances will be on the Detroit ballot this year.

Indeed, Ward told me, MDOT, the Michigan Department of Transportation, seems to have no intention of erecting the sort of noise barriers Canada has to shield the mostly poor people on the U.S. side who will be living within the shadow and the “noise footprint” of the Gordie Howe bridge.

Alan Ackerman is an attorney who represents most of the business owners in the bridge area. He is sympathetic to community benefits — but says “Duggan came a little late to the party, after Coleman Young and Kwame gave so much away.”

His clients, most of whom were struggling to begin with, are not benefiting from the delay. “I’ve never seen anything like the power of Matty Moroun. He gets anything he wants,” said Ackerman, who has been practicing law in the city for 44 years.

Canada recently began to back away from the previous insistence that the bridge would be finished and open by 2020.

Ackerman’s guess is that it will be 2023 — and that it won’t happen until all parties conclude an agreement with Moroun.

The biggest reason for the delay is that the Detroit-Windsor Bridge Authority still has to acquire many parcels of land, 30 or so of which are owned by — yep — Matty Moroun.

Ackerman is perhaps the area’s foremost expert on eminent domain; he won the Michigan Supreme Court’s historic “Poletown” ruling in 2004 that made it harder for economic development organizations to take homeowners’ land.

Here, he thinks eminent domain could be used if needed in the case of the Moroun properties, but that things could be dragged out indefinitely unless a deal is reached with the state’s greediest and most obnoxious billionaire.

Driving through New Jersey, he told me “You’ll know it will happen when one day you hear that they’ve made a deal with Moroun.” Hundreds of miles away, sitting at Johnny Noodle King, a short drive from his docks, Ward also agrees.

The new bridge will happen; it’s too economically important to the region. As a human being, Ward is sort of the anti-Moroun. Looked at one way, he should be against any new bridge. His truck ferry exists because the rickety Ambassador isn’t safe for trucks carrying hazardous materials.

The new bridge will be, and will put Ward, the 56-year-old single father of an autistic son, out of business.

Yet a new bridge is essential if we are to have a future. One thing working in its favor is biology.

Ward doesn’t say so, but he knows in a few years, the 89-year-old Moroun will be dead.

Yet he also can look back at years of failed and thwarted attempts and delays, and a region sold out time and again.

“I worry,” Ward said.

We all should.