Acquiring Land Rights For Pipelines By Negotiation And Not Condemnation

As utility corridor projects crisscross the nation, more and more land rights will be needed to build them. Even existing corridors may need to be expanded to accommodate anticipated demand.

Unfortunately, in a post-Kelo world, entities that lawfully possess the power to acquire property by the use of eminent domain (including many utilities and pipeline companies) are hesitant to use this power for fear of adverse public reaction.

In Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court held that condemning private property for private redevelopment projects was a proper public purpose under the U.S. Constitution. The unanticipated public backlash over this opinion led many states to enact legislation specifically banning such takings under state law.

But it is not simply the fallout over Kelo that has caused reluctance in the use of the eminent domain power. Over my lengthy career of working with utility providers and other condemning entities, I have yet to meet one that prefers a forced conveyance to a voluntary land acquisition. Eminent domain often means litigation, uncertainty and expense, i.e. the antithesis of a successful corridor project which is defined by the ability to build it on time and on budget.

So how does a company minimize, if not avoid, the use of the eminent domain power in acquiring necessary land rights? Here are several useful tips developed from years of witnessing both successes and mistakes in corridor acquisition and other projects. Each experience leaves important clues.

Hire experienced eminent domain lawyers as early as possible in the corridor-development process. Eminent domain is a specialized area of the law that combines knowledge of specific legal principles with an in-depth understanding of appraisal and valuation standards and techniques. Full-time practitioners of eminent domain law have a reservoir of knowledge that can add tremendous value to any corridor project.

Unfortunately, eminent domain lawyers are often hired at the very end of the acquisition schedule, usually at a critical stage, when efforts to negotiate with recalcitrant landowners have failed, when key parcels have yet to be obtained, and when construction deadlines are fast approaching. By then, the value that such professionals can bring to the process, while still significant, has been diminished from the value that could have been realized if they had been retained at an earlier stage to give strategic advice and counsel aimed at lessening or even eliminating the need to resort to eminent domain.

Sometimes companies feel that hiring eminent domain lawyers early on in the process sends the wrong message, suggesting that litigation is expected or even inevitable. Let me provide a different point of view. I have found that the best deterrent to the use of eminent domain is to have highly qualified and reputable eminent domain lawyers as part of the corridor team from the very beginning of the project. Not only can such individuals offer valuable counsel, but just the knowledge that a company has strong and capable eminent domain expertise on its side can cause opposing parties to think twice about forcing litigation to resolve differences.

Get Legal Professionals Involved