On April 12, 2024, the United States Supreme Court unanimously decided Sheetz v. County of El Dorado, California, No. 22-1074, holding that county-level legislation that imposes conditions on the receipt of building permits, here the imposition of traffic impact fees, may amount to a taking under the Constitution’s Fifth Amendment when the conditions do not have an “essential nexus” to the government’s land use interest and a “rough proportionality” to the proposed development’s impact on that interest.  The ruling overturned decisions from lower courts that had held that the Takings Clause operates to invalidate only administrative conditions imposed by local land use agencies, not legislative enactments like the traffic impact fee imposed by the County in this case.   Read More »

Share | Email| Comments|  Topics: Supreme Court, Takings, Takings Clause, United States Supreme Court

On Tuesday, June 29, 2021, the United States Supreme Court reversed the Third Circuit and held that Section 717f(h) of the Natural Gas Act authorizes Federal Energy Regulatory Commission (FERC) certificate holders to “condemn all necessary rights-of-way, including land in which the State holds an interest.” See PennEast Pipeline Co., LLC v. New Jersey, Slip Op. No. 19-1039, (June 29, 2021). This holding is consistent with history and precedent regarding the superior power of federal eminent domain. Read More »

Share | Email| Comments|  Topics: Condemnation, Eminent Domain, Federal Energy Regulatory Commission, FERC, Marcellus Shale, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Supreme Court, Takings, Takings Clause, Third Circuit, United States Supreme Court

This Post was authored by Lisa Maeyer, a MGKF summer associate. 

On June 8, 2020, the Commonwealth Court of Pennsylvania affirmed a trial court’s holding that flooding from sewage overflows not resulting from intentional activity on the part of a sanitary authority did not constitute a de facto taking of a landowner’s affected property. In the Matter of: Condemnation by the Franklin Twp. Sewage Auth., No. 1237 C.D. 2019, 2020 WL 3039070 (Pa. Cmwlth. June 8, 2020). In particular, the Court held that because the sewage overflows resulted from the age of the system and infiltration and inflows not caused by any actions of the Franklin Township Municipal Sanitary Authority (the “Authority”), the lower court properly sustained preliminary objections to Plaintiff William Ott’s petition seeking compensation for a de facto taking of his property. Read More »

Share | Email| Comments|  Topics: Condemnation, Damages, Eminent Domain, Flooding, Pennsylvania, Property Damage, Property Value, Real Estate, Sovereign Immunity, Stormwater, Takings, Trespass, Water

In Frazer/Exton Development, L.P. v. United States, the United States Court of Appeals for the Federal Circuit affirmed the dismissal of a takings claim against the federal government relating to environmental contamination because the appellants, current and former landowners of the site at issue, filed their lawsuit more than 6 years after environmental remediation was complete. Frazer/Exton Development, L.P. v. United States, No. 2019-2143 (Fed. Cir. Apr. 7, 2020). Read More »

Share | Email| Comments|  Topics: Brownfields, CERCLA, Cleanup, Consent Decree, Contamination, Damages, Environmental Covenants, Federal Circuit, Pennsylvania, Real Estate, Remediation, Statute of Limitations, Superfund, Takings

They say stigmas are social constructs. In court, however, they must be based on relevant and objective evidence, so says the Court of Appeals for the Third Circuit in a precedential opinion involving the amount of compensation owed to private landowners for easements over their properties to allow the installation of an underground pipeline. In UGI Sunbury LLC v. A Permanent Easement for 2.4645 Acres, Nos. 18-3126, 18-3127 (Feb. 11, 2020), the appellant UGI Sunbury, LLC (UGI) sought vacatur of a decision from the District Court of the Middle District of Pennsylvania in a condemnation proceeding under the Natural Gas Act, which based the compensation awarded in part on a claim that the public perception of natural gas pipelines on or near real property will permanently reduce the value of the property due to the stigma that the property is “damaged goods.” While the Third Circuit did not opine on the validity of the theory in general, it did find that the expert testimony upon which the award was based utterly failed to meet the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and thus should not have been admitted nor relied upon.  Read More »

Share | Email| Comments|  Topics: Condemnation, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Property Damage, Real Estate, Stigma, Takings, Third Circuit

On December 17, 2019, the Honorable Judge Charles F. Lettow of the United States Court of Federal Claims, issued a 46-page opinion finding the federal government liable for taking a flowage easement on private properties within the Addicks and Barker Reservoirs and upstream of the Addicks and Barker Dams—two federal flood control projects along the gulf coast in Texas.  In re Upstream Addicks & Barker (Texas) Flood-Control Reservoirs, No. 17-9001L, slip op. (Fed. Cl. Dec. 17, 2019).  The decision is the first step for upstream property owners hoping to recover damages for severe flooding caused by Tropical Storm Harvey over two years ago. Read More »

Share | Email| Comments|  Topics: Army Corps, Flooding, Takings, Takings Clause

On September 10, the Third Circuit held that while the National Gas Act (NGA) delegates the federal government’s power of eminent domain to private gas companies, it does not necessarily delegate the federal government’s exemption from state sovereign immunity. In re: PennEast Pipeline Company, LLC, No. 19-1191 (3d Cir. 2019). As a result, private entities acting under the NGA cannot condemn state-owned property absent action by an accountable federal official. Read More »

Share | Email| Comments|  Topics: Condemnation, Eleventh Amendment, Eminent Domain, Federal Energy Regulatory Commission, FERC, Natural Gas, Natural Gas Act, New Jersey, Oil and Gas, Pipelines, Public Lands, Sovereign Immunity, Takings, Third Circuit

Last month in a 2-1 split, the Third Circuit held that state, not federal, law determined how much a landowner was entitled to as just compensation in condemnation proceedings brought by private entities under the Natural Gas Act of 1938. Tennessee Gas Pipeline Co., LLC v. Permanent Easement for 7.053 Acres, No. 17-3700 (3d Cir. July 23, 2019). The precedential decision will force natural gas companies to account for differences in state law in negotiations with landowners over what constitutes “just compensation” for a taking.   Read More »

Share | Email| Comments|  Topics: Condemnation, Drilling, Energy, Marcellus Shale, Natural Gas, Natural Gas Act, Oil and Gas, Pennsylvania, Pipelines, Real Estate, Takings, Third Circuit

On June 21, 2019, the Supreme Court handed down a 5-4 decision in Knick v. Township of Scott, Pennsylvania, shaking up Fifth Amendment takings claim jurisprudence. Knick v. Township of Scott, Pennsylvania, 139 S.Ct. 2162 (2019). In Knick, the Court held that a property owner has an actionable Fifth Amendment takings claim at the moment a state or local government takes her property without paying just compensation, and that violation of the Fifth Amendment can be remedied in federal court via a civil rights action under 42 U.S.C. § 1983. The ruling overturned years of precedent that held that a plaintiff could not bring a takings claim in federal court against a state or local government until she had first exhausted her state court remedies. Knick specifically overruled Williamson County, the 1985 case which established the state-litigation requirement. Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Read More »

Share | Email| Comments|  Topics: Deeds, Due Process, Fair Market Value, Pennsylvania, Procedure, Property Value, Real Estate, Subject Matter Jurisdiction, Supreme Court, Takings, Takings Clause, United States Supreme Court, Zoning

In Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (6th Cir. Feb. 4, 2019), released on Monday, February 4, the Sixth Circuit Court of Appeals held that a pipeline’s use of Ohio’s forced pooling law is not a taking under the Fourteenth Amendment. This decision, although not recommended for full text publication, is significant as more states enact and/or expand the scope of such laws, and may influence a similar suit brought in Colorado, within the Tenth Circuit, challenging the constitutionality of Colorado’s forced pooling regulations.  Read More »

Share | Email| Comments|  Topics: Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Oil and Gas, Royalties, Sixth Circuit, Takings, Takings Clause, Trespass