The Third Circuit Court of Appeals hit PennEast Pipeline Company with another setback on November 5, 2019. The Court of Appeals denied the company’s request for a rehearing of the Court’s earlier decision, which held that the 11th Amendment of the United States Constitution prohibits PennEast Pipeline Company from suing the State of New
Ewing Township’s revaluation has been a long time coming and appears to be done. Property owners in Ewing Township will be receiving their new real estate tax assessment notices in the next few weeks and will have a small window to meet with the revaluation company to discuss the new tax assessment or file a tax appeal.
Does a private pipeline company have the right to file a lawsuit to take private property to build a gas pipeline?
Under the Natural Gas Act, a pipeline company can apply to the Federal Energy Regulatory Commission (FERC) for a Certificate of Public Convenience and Necessity. If FERC issues the Certificate of Public Convenience and Necessity and the pipeline company meets many other conditions, it can obtain the power take private property.
A few weeks ago, the Federal Energy Regulatory Commission (FERC) granted conditional approval of the PennEast Pipeline. FERC is a federal agency which regulates gas pipelines and issued an order to allow PennEast to proceed forward with its project on January 19, 2018. This approval will allow PennEast to file complaints in the United States Federal Courts in New Jersey and Pennsylvania seeking to exercise the power of eminent domain to take property rights to install the pipeline.
Since this announcement, the most common question has been: what happens next?
What is the status of the PennEast Pipeline project?
With the recent confirmation of two new commissioners, a quorum has been restored in the Federal Energy Regulatory Commission (FERC). This likely means that FERC will soon begin addressing the approval of natural gas pipeline projects, including the PennEast Pipeline.
The PennEast Pipeline project received its final environmental impact statement from FERC in April 2017.
In the next step in the approval process, FERC will decide whether to issue a Certificate of Public Convenience and Necessity under Section 7 of the federal Natural Gas Act. Once a Certificate is issued, as is probable, FERC will convey the power of eminent domain to the PennEast Pipeline project owners. PennEast will then use the power of eminent domain to take private property to construct the pipeline along a right-of-way approved by FERC.
New Jersey approved a gas tax in 2016 to replenish the New Jersey Transportation Fund. The proceeds of the tax are to be used to make infrastructure improvements throughout New Jersey. In addition, the Trump administration recently announced a policy to support infrastructure projects on a national level.
Modification of highway access is one of the most problematic and confusing areas of the law. As a general rule, the government’s use of its “police power” enables it to regulate the state highway system. In New Jersey, the government also has the benefit of the Highway Access Management Act.
In adopting the Highway Access Management Act, the New Jersey Legislature declared: (1) “[t]he State has a public trust responsibility to manage and maintain effectively each highway within the State highway system to preserve its functional integrity and public purpose for the present and future generations” (N.J.S.A. 27:7-90c), and (2) “[t]he access rights of an owner of property abutting a State highway must be held subordinate to the public’s right and interest in a safe and efficient highway.” (N.J.S.A. 27:7-90g).
Often, the government will use these powers to change access to a property and refuse to pay just compensation or damages to the owner. If the change in access is severe but does not rise to the level of an actual taking, the property owner may be left with no recourse. This article provides a brief overview of the process for the modification of highway access.
What is eminent domain and who uses it?
Eminent Domain is the power of the government to take private property and convert it into public use. Government agencies that use eminent domain include state government agencies like the Transportation department and local agencies tied to the municipalities. “The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners.” This means if the government wants your land for public use it must buy it from you at fair market rates. Usually it tries to buy your property before going through the condemnation process.
Negotiating the conveyance of land rights with an experienced negotiator is often difficult and confusing at best. Terms such as temporary construction easement, slope easement, and fee simple interests are thrown around as if the public knows what they mean. Some terms also have acronyms (“TCE” for temporary construction easements or “SE” for slope easements), which further confuse matters. Below we will address some of the more frequently asked questions that we receive from property owners negotiating with pipeline companies prior to the filing of an eminent domain case.
Each year select municipalities appraise all properties within their borders in order to have all tax assessments reflect the current full and fair value of each property within the taxing district. The process, known as a revaluation, is alarming to property owners since they do not know whether their taxes will increase, decrease, or stay the same.
In 2017, revaluations were completed in Trenton, New Brunswick, Milburn, and many other municipalities in New Jersey. This article will address frequently asked questions that we have received over the years.