Buy the Farm and eminent domain

Filed under:Brookings Routing Docket — posted by admin on December 11, 2009 @ 10:12 am

There have been many questions about eminent domain at the hearings over the last two weeks.  And Buy the Farm.  So here’s a quick primer on a couple aspects of those issues.

Buy the Farm

Buy the farm is a statutory provision that grew out of the late 1970’s transmission struggles.  What’s important about Buy the Farm is that it allows people to get out from under the transmission line if there’s one planned for their property.  Rather than establish an easement, either through negotiations and a settlement or condemnation, this option allows a landowner to elect to tell the utility to “Buy the Farm.”   This law has been on the books for around 30 years, but not used because there have not been large transmission lines across Minnesota for decades.  They learned their lesson back in the late 70s, early 80s, see Powerline by Wellstone and Casper, but institutional memory is fading as those involved in those transmission struggles have retired, sold out, gotten government jobs, died, and so now here we are, they’re trying to do it again.

Subd. 4.Contiguous land.

When private real property that is an agricultural or nonagricultural homestead, nonhomestead agricultural land, rental residential property, and both commercial and noncommercial seasonal residential recreational property, as those terms are defined in section 273.13 is proposed to be acquired for the construction of a site or route for a high-voltage transmission line with a capacity of 200 kilovolts or more by eminent domain proceedings, the fee owner, or when applicable, the fee owner with the written consent of the contract for deed vendee, or the contract for deed vendee with the written consent of the fee owner, shall have the option to require the utility to condemn a fee interest in any amount of contiguous, commercially viable land which the owner or vendee wholly owns or has contracted to own in undivided fee and elects in writing to transfer to the utility within 60 days after receipt of the notice of the objects of the petition filed pursuant to section 117.055. Commercial viability shall be determined without regard to the presence of the utility route or site. The owner or, when applicable, the contract vendee shall have only one such option and may not expand or otherwise modify an election without the consent of the utility. The required acquisition of land pursuant to this subdivision shall be considered an acquisition for a public purpose and for use in the utility’s business, for purposes of chapter 117 and section 500.24, respectively; provided that a utility shall divest itself completely of all such lands used for farming or capable of being used for farming not later than the time it can receive the market value paid at the time of acquisition of lands less any diminution in value by reason of the presence of the utility route or site. Upon the owner’s election made under this subdivision, the easement interest over and adjacent to the lands designated by the owner to be acquired in fee, sought in the condemnation petition for a right-of-way for a high-voltage transmission line with a capacity of 200 kilovolts or more shall automatically be converted into a fee taking.

There’s only one case regarding Buy the Farm, which supports the option, the court noting that the legislature specifically intended to give landowners an out if faced with transmission.   What does the Minnesota Supreme Court have to say about “Buy the Farm?”

The enactment of §116C.63, subd. 4 reflects a creative legislative response to a conflict between rural landowners and utilities concerning HVTL right-of-ways.  Opponents of the utilities, resisting further encroachments upon the rural landscape and fearing the effects upon the rural environment and public health, not only challenge the placement and erection of high voltage transmission lines, but question whether the rural community’s sacrifice to the commonweal serves a greater social good.  The legislature, sensitive to these concerns but perceiving the occasion as demanding the construction of additional power-generating plants and high voltage transmission lines, enacted §116C.63, subd. 4 in partial response.

Section 116C.63, subd. 4 requires as a condition precedent to the exercise of the power of eminent domain delegated to utilities, the additional purchase from landowners electing under the statute of any property contiguous to easements condemned for the purpose of a HVTL right-of-way.  The statute defines such acquisitions to be for a public purpose.  In this manner, the legislature affords landowners not wishing to be adjacent to such right-of-ways the opportunity to obtain expeditiously the fair market value of their property and go elsewhere.  The statute, in so doing, responds to parties most affected by the operation of high voltage transmission lines; the statute eases the difficulties of relocation by shifting the transaction cost of locating a willing purchaser for the burdened property from landowner to utility.

Cooperative Power Ass’n ex rel. Bd. Of Dirs. v. Assand, 288 N.W. 2d 697, 698 (Minn. 1980).

Then there’s the matter of utility exemptions from the laws of eminent domain:

117.189 PUBLIC

Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187; 117.188; and 117.52,  subdivisions 1a and 4, do not apply to public service corporations. For purposes of an award of appraisal fees under section 117.085, the fees awarded may not exceed $1,500 for all types of property except for a public service corporation’s use of eminent domain for a high-voltage transmission line, where the award may not exceed $3,000.

Click on the links in the statute for the related statutory provisions that utilities are exempted from — IT’S APPALLING.

117.031 – Attorney Fees

117.036 – Appraisal and Negotiation Requirements

117.055, Subd. 2(b) – Petition and Notice

117.186 – Compensation for Loss of Going Concern

117.187 – Minimum Compensation

117.188 – Limitations

117.52, Subd. 1(a) and 4 – Uniform Relocation Assistance

117.085 – Commissioners, Power, Duties

To see what they’re exempt from, just click away.  Craig Poorker testified the utilities paid for “loss of going concern” but take a look at the utility exemption from Minn. Stat. 117.186 Loss of Going Concern.

If you have questions or comments, fire off in the comment screen below and I’ll post.

Today it’s Lakeville again

Filed under:Uncategorized — posted by admin on @ 8:52 am


Last night we went until a little after 11:54 p.m. when I last saved my notes.  The court reporter says it was 12:15 a.m.!  We’re here at the Holiday Hotel until about 12:30 (at least that’s what’s planned).  Notes from today:

Public hearing notes – December 11