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CONDEMNATION ISSUES/UTILITY EASEMENTS
CONDEMNATION ISSUES/UTILITY EASEMENTS
Presenters:
Joseph E. Batis, MAI, R/[email protected](815) 726-1455
Joseph C. Magdziarz, MAI, SRA, AI-GRS, [email protected](815) 482-5909
John M. Spesia, Esq. [email protected](815) 726-4311
CONDEMNATION ISSUES/UTILITY EASEMENTS
• Enbridge Energy Line 78 Pipeline
• Southern Access Extension Pipeline
• Flanagan South Pipeline
• Southern Access Pipeline
• Southern Lights Pipeline
• Kinder Morgan/NGPL pipeline
• Guardian Pipeline
• Enterprise Products Pipeline
• Explorer Pipeline
• Alliance Pipeline
• Aux Sable Liquid Products pipeline
• Horizon Pipeline
• Rockies Express Pipeline
• Aqua Monee-Kankakee water pipeline
• Lake Michigan water pipeline project
• Northern Border Pipeline
• Quantum Pipeline
• Keystone Pipeline
MAJOR PROJECTS & COURT CASES
• Enbridge Energy Line 78 Pipeline
• Southern Access Extension Pipeline
• Flanagan South Pipeline
• Southern Access Pipeline
• Southern Lights Pipeline
• Kinder Morgan/NGPL pipeline
• Guardian Pipeline
• Enterprise Products Pipeline
• Explorer Pipeline
• Alliance Pipeline
• Aux Sable Liquid Products pipeline
• Horizon Pipeline
• Rockies Express Pipeline
• Aqua Monee-Kankakee water pipeline
• Lake Michigan water pipeline project
• Northern Border Pipeline
• Quantum Pipeline
• Keystone Pipeline
MAJOR PROJECTS & COURT CASES
Enbridge Pipelines (Ill.), L.L.C. v. Troyer, 2015 IL App (4th) 1503344
Enbridge Energy, L.P. v. Chicago Title, 2016 IL App (3d) 150201-U
Enbridge Pipelines v. Kuerth, 2016 IL App (4th) 150519
Enbridge Pipelines v. Monarch Farms, 2017 IL App (4th) 150807
Enbridge Energy, L.P. v. Fry, 2017 IL App (3d) 150765
Enbridge Pipelines v. Hoke, 2017 IL App (4th) 150544
Enbridge Pipelines v. Temple, 2017 IL App (4th) 150346
Enbridge Pipelines v. Kiefer, 2017 IL App (4th) 150342
• Southern Access Extension Pipeline
MAJOR PROJECTS & COURT CASES
• 247 Miles of crude oil pipeline
• 1,224 total tracts
• 55 Eminent Domain consolidated into 9 trials
• $76.2 Million (Landowners’ Claims)
152 acres of pipeline easements
• $850,000 Landowner Awards
APPRAISAL REPORT
Pipeline Interference with farming:“Trees could be genetically altered to have ears of corn as their fruit”
“An evacuation plan for family members … must be made …
If there was a fire, or explosion … human nature would cause an attraction to see the damaging
event … The landowners living near the easement must keep a packed
suitcase too.”
62 Acres of Pipeline Easement$27,950,224 - Damages
APPRAISAL REPORT
62 Acres of Pipeline Easement$27,950,224 - Damages
Results
• Appraiser testimony barred
• $377,000 Award (right-of-way)
• $0 remainder damages
TOPICS
• SCOPE
• METHODOLOGY
• BEING PERSUASIVE
• DISTINGUISHING YOURSELF
SCOPE
SINGLE LINE DEFINED EASEMENT
SCOPE
MULTIPLE LINE EASEMENT
SCOPE
SCOPE
SINGLE LINE FLOATING EASEMENT
SCOPE
SINGLE LINE FLOATING EASEMENT
SCOPE
“BLANKET EASEMENT”
SCOPE
SCOPE
HOW WERE THE EASEMENT RIGHTS ACQUIRED?HOW WAS THE PROPERTY (LAND) ENCUMBERED?
SCOPE
HOW WERE THE EASEMENT RIGHTS ACQUIRED?HOW WAS THE PROPERTY (LAND) ENCUMBERED?
BY AGREEMENTROW DOCUMENT SIGNED BY TWO PARTIES
SCOPE
HOW WERE THE EASEMENT RIGHTS ACQUIRED?HOW WAS THE PROPERTY (LAND) ENCUMBERED?
BY AGREEMENTROW DOCUMENT SIGNED BY TWO PARTIES
BY CONDEMNATIONCOMPLAINT FILED; DESCRIBES RIGHTS ACQUIRED
SCOPE
HOW WERE THE EASEMENT RIGHTS ACQUIRED?HOW WAS THE PROPERTY (LAND) ENCUMBERED?
BY AGREEMENTROW DOCUMENT SIGNED BY TWO PARTIES
BY CONDEMNATIONCOMPLAINT FILED; DESCRIBES RIGHTS ACQUIRED
BY SUBDIVISION PLATEASEMENTS IDENTIFIED ON SUBDIVISION PLAT
The property rights sought include a pipeline right-of-way and perpetualeasement to lay, construct, operate, maintain, inspect, remove, alter, replace,relocate and reconstruct a pipeline; the right to clear and to keep clear theright-of-way so as to prevent damage or interference with the safe andefficient operation and patrol of the pipeline and right-of-way; the right at anyand all times to go upon the right-of-way for any of the foregoing purposes aswell as the right of ingress and egress to and from the right-of-way; the rightreasonably to limit excavation within the right-of-way or the erection withinthe right-of-way of any permanent structures, the landowner(s) retaining theright to fully use and enjoy the right-of-way and easement areas in ways thatdo not threaten the safety, integrity, and operation of the pipeline.
COMPLAINT – Rights of Utility Company
SCOPE
The value of the property within the easement strip is the difference between thefair cash market value of the property immediately before the easement is imposedand the fair cash market value of the property immediately after the easement isimposed. I.P.I. No. 300.54
When I use the words “Just Compensation” for each defendants’ property whichwill be taken, I mean the fair cash market value of the property at its highest andbest use on the date the complaint was filed. I.P.I. No. 300.80
When I use the expression “highest and best use” of property I mean that usewhich would give the property its highest cash market value on the date thecomplaint was filed. I.P.I. No. 300.84
JURY INSTRUCTIONS
SCOPE
JURY INSTRUCTIONS
When I use the word “remainder” I mean thedefendant’s property outside the easement stripwhich defendant claims is damaged by theimposition of the easement.
I.P.I 300.86
SCOPE
METHODOLOGY
METHODOLOGY
[W]here a witness has considered improper elementsof damage, his testimony will be deemed incompetent*** even though in part based upon proper elements.
Trunkline Gas Co. v. O'Bryan, 21 Ill. 2d 95, 100 (1960)
METHODOLOGY
Mr. Spesia.
Appraiser.
METHODOLOGY
[A]ny temporary interference with access to the easement areacould not, under the law, cause damage to the remainderproperty. See Trunkline Gas Co. v. O'Bryan, 21 Ill. 2d 95, 100-01,(1960) (recognizing the settled law that the temporaryconsequential interference with the use of farm property causedby the construction of a public improvement was not a properelement of damage to the land not taken).
Enbridge Energy v. Fry, 2017 IL App 3d 150765, ¶55
IMPROPER FACTOR
METHODOLOGY
METHODOLOGY
We agree with the trial court that [Landowners’ Appraiser] based[his] valuations on numerous improper factors. Theseinappropriate factors included fear and stigma associated with oilpipelines, potential for oil leaks, and the unfounded speculationthat hydrostatic testing would pose unspecified safety concerns.Given our agreement with the court's evidentiary rulings, whichessentially barred all of landowners' expected valuationtestimony, we also see no reason to disturb the court's grant ofdirected findings.
Enbridge Pipelines (Ill.), L.L.C. v. Monarch Farms, 2017 IL App (4th) 150807, ¶77
IMPROPER FACTOR
METHODOLOGY
DEFENDANTS’ APPRAISER’S WITNESS DISCLOSURE
Appraiser’s
METHODOLOGY
When I use the words “fair cash market value” Imean that price which a willing buyer would pay incash and a willing seller would accept, when thebuyer is not compelled to buy and the seller is notcompelled to sell.
I.P.I No. 300.81
METHODOLOGY
As we have already noted, landowners' claimsregarding the use of comparable sales of othereasements to determine the value of the damages tothe property caused by the permanent easements atissue in this case have no merit because no suchmarketplace exists.
Enbridge Pipelines v. Kuerth, 2016 IL App (4th) 150519, ¶121
IMPROPER FACTOR
METHODOLOGY
DEPOSITION OF CONDEMNOR’S APPRAISER
Def’s Appraiser’s files.
METHODOLOGY
PERSUASIVE
• AUTHORITATIVE TEXTS
• DOCUMENTS• INTERVIEWS• STUDIES• SALES
• EXHIBITS
PERSUASIVE
PERSUASIVE - AUTHORITATIVE
APPRAISAL EXCERPT
OBJECTIVE ANALYSIS EVALUATING PIPELINE IMPACT ON VALUE
PERSUASIVE
PERSUASIVE - INTERVIEWS
TRIAL TESTIMONY OF UTILITY COMPANY APPRAISER
PERSUASIVE – ASSESSMENT DATA
PERSUASIVE - SALES
PERSUASIVE - SALES
PERSUASIVE - EXHIBITS
RESIDENCE
September, 2014Section 15, Frankfort Township, Will County
Lighthouse Pointe
PERSUASIVE - EXHIBITS
INDEPENDENT APPRAISAL ON SUBJECT PROPERTIES
PERSUASIVE – INDEPENDENT APPRAISAL
DISTINGUISH
DISTINGUISH
APPRAISER’S PROPERTY LISTING
DISTINGUISH – APPRAISER OPINIONS
DISTINGUISH – DEVELOPER OPINIONS
DISTINGUISH
REAL ESTATE BROKER’S DEVELOPMENT
DISTINGUISH - REPORTS
DISTINGUISH - REPORTS
QUESTIONS
Presenters:
Joseph E. Batis, MAI, R/[email protected](815) 726-1455
Joseph C. Magdziarz, MAI, SRA, AI-GRS, [email protected](815) 482-5909
John M. Spesia, Esq. [email protected](815) 726-4311
