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Taking of public use for another public use

By Alan Ackerman

istockanalyst.com

The U.S. Court of Appeals has thwarted James Lichoulas Jr.'s attempt to block Lowell officials from taking much of his Appleton Mills complex by eminent domain.

In a decision issued last week, the federal appeals court ruled that a lower court was correct when it rejected Lichoulas' lawsuit, in which he challenged the city's legal right to take by eminent domain the Appleton properties, which includes a defunct hydroelectric power facility designed to generate electricity from the water flow between the Pawtucket and Hamilton canals.

City councilors voted to take Lichoulas' land in April 2006, paying the property owner $2.5 million as compensation for nearly half of the land in what city planners call the Hamilton Canal District project, including the area slated to be occupied by a $175 million state judicial center. Lichoulas argues that amount was inadequate.

Meanwhile, the Federal Energy Regulatory Commission last March 2008 terminated Lichoulas' license to operate the Appleton Mills hydroelectric power project, as that facility is non-operational and has fallen into ruin along with most of the rest of the dilapidated mill complex.

But Lichoulas argued that the revocation of the license is irrelevant because state law assesses the legality of takings at the time the property is seized. The fact that the license was pulled after the taking cannot "taint the taking," he wrote.

He and his attorneys also have alleged that the Federal

Power Act of 1920 prohibits the City Council from using its eminent-domain powers to take the nearly 7-acre swath of land in question because a portion of it was licensed by the Federal Energy Regulatory Commission in 1986 for use as a hydroelectric plant.

The taking of already existing public use for public use has its own set of rules. Generally, there is a requirement that the sate legislature make a specific grant for a taker to take property already being put to public use. An electric plant would be such a public use.

Additionally, a basic tenet of law is that federal acts preempt state action. Here, there is no use. The property is not being used as a hydroelectric plant

Full post as published by National Eminent Domain Blog on March 01, 2009 (boomark / email).