Transmission Lines & Pipelines - Texas Association of REALTORS

Report
Transmission Lines & Pipelines:
Routing-CondemnationEasements
Wednesday, May 28, 2014
Texas Association of Realtors
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Big Picture
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Phase 1: Company study
Phase 2: Routing
Phase 3: Land acquisition (condemnation)
Phase 4: Construction
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Phase 2: Routing
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Routing Process
Transmission/Pipelines
• Regulated Formal Process
– Powerline Company Files CCN
– Heard by SOAH/PUC
• Non-transparent Process
– O&G Company/Railroad
– Private/Threat of Condemnation
Powerlines in SOAH
• Intervene or Comment
• If Intervening, Provide
Written Direct Testimony
• Critical Difference: Protestors
are Not Parties and Comments
Are Not Evidence
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Powerline Critical Fact!
“RECOMMENDED
ROUTE”
DOES NOT MEAN
MUCH
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Roles and Strategies
of the Team
Experts:
Landowners:
Lawyers:
Routing
Alliances
Legal
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How Experts Can Help
You
• Analyze Routes and Segments
• Recommend a Route
• Support or Rebut Routes
Chosen By Routing Agency
• Provide Testimony at Hearing
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Critical Conclusion!
“INTERVENORS”
INFLUENCE ROUTE
SELECTION
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Big Picture
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•
•
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Phase 1: Company study
Phase 2: Routing
Phase 3: Land acquisition (condemnation)
Phase 4: Construction
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Steps in Eminent
Domain/Condemnation
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•
•
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Phase 1: The Call, Visit or Letters from Landman
Phase 2: Negotiating Your Terms and Compensation
Phase 3: Special Commissioners’ Hearing
Phase 4: District Court/County Court at Law Appeal
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Phase 1: The Letters
• “Bona fide offer” required
• Condemnor’s “initial offer”
• Generally, includes a 30-day
deadline
• Law requires a written appraisal
and 14-day “final offer” before
any hearing
• Critical time to have consulted
with an attorney
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Phase 2: Negotiating Your
Terms & Compensation
• Company landman makes
the written offer
• First offer typically “low”
• Offer and terms are
negotiable
• Landman and/or company
lawyers discuss price,
location, and terms
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Phase 3: Commissioners’ Court
• If no agreement, company files
condemnation lawsuit
• Purpose of Commissioners’ Court
is to assess damages and “award”
a dollar amount to landowner
• Braun & Gresham continues to
negotiate
• Company can begin building after
award
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Phase 4: Appeal
• Objection to award
• Formal courtroom
jury trial
• Decides price
• Expensive
• Should be used as
last resort
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General Negotiations
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•
•
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Price of land taken
Other damages
Details of routes
Location of structures
Temporary agreements
– e.g., Roads/Easements
• Permanent easements
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Easement Negotiations
• Restore/protect land
• Access points
• Roads
•
•
•
•
•
Improvements
Fences and gates
Liability protections
Landowner’s future use
Limits on others’ use
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Pipeline Specific Negotiations
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•
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Non-exclusivity
Limitation of number of lines
Limitation of diameter of pipe
Limitation of easement width
Limitation of surface facilities
Depth of pipe
Surface restoration measures
Indemnity protection
Termination clause
Land/ranch specifics
Miscellaneous provisions
–
No warranty, dispute resolution, etc.
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QUESTIONS?
• Do transmission lines/pipelines negatively
affect property values?
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QUESTIONS?
• Do transmission lines/pipelines negatively affect
property values?
• Should the seller tell the buyer an electric utility
company has notified the seller the property
may be impacted by the routing of a new
transmission line?
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QUESTIONS?
• Do transmission lines/pipelines negatively affect
property values?
• Should the seller tell the buyer an electric utility
company has notified the seller the property may be
impacted by the routing of a new transmission line?
• Should the seller tell the buyer a pipeline
company has notified seller about the possible
routing of a new pipeline across the seller’s
property?
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QUESTIONS?
• Do transmission lines/pipelines negatively affect
property values?
• Should the seller tell the buyer an electric utility
company has notified the seller the property may be
impacted by the routing of a new transmission line?
• Should the seller tell the buyer a pipeline company
has notified seller about the possible routing of a
new pipeline across the seller’s property?
• Should the seller disclose whether the property
is under the threat of potential condemnation?
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Bad Old Easements
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•
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•
•
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Blanket easements by past failure to negotiate
Undefined ingress and egress locations
Undefined width of permanent easement
Undefined number and sizes of pipelines
Undefined number of transmission line circuits, etc
Undefined use of additional temporary work space
Payment for new lines at 1930’s prices -- or worse!!
– Example $0.25/rod for each additional line (1 rod = 16.5 feet)
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Harrington v. Magellan Pipeline Co., L.P.
(2011 Waco Court of Appeals)
• An easement agreement in 1919 that grants the
pipeline company the right to lay multiple pipelines
“over and through [Grantor’s] lands” is ambiguous
as to whether it means multiple pipelines in the
same ditch as the first pipeline, or multiple pipelines
at different locations and in different directions on
Grantor’s lands.
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Natural Resources Code Sec. 111.0194
• Applies to easements prior to January 1, 1994
• Applies to pipelines laid under threat of
Condemnation or Eminent Domain
• If width of easement is undefined in old easement
then “extends only a width of 50 feet as to each
pipeline laid”
• Company may rebut with evidence it needs more
• Statute is unfortunately ambiguous
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Exceptions to Title Policy
• Buyer should request the documents and carefully
review the language before closing
• Without a careful review by buyer and his/her
attorney, the buyer man not realize the extent of the
burden of a bad old easement`
• Company may decide to “maintain” an old easement
and remove all trees/growth in a 50-100 foot strip
of land -- or lay additional lines anywhere on the
property
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Q&A
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Patrick L. Reznik
512-894-5426
[email protected]
www.braungresham.com
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