August 26, 2014
Kansas

Utility petitions court for eminent domain power

By Christopher Guinn | Dodge City Daily Globe | Posted Aug. 25, 2014 | www.dodgeglobe.com

The Mid-Kansas Electrical Company is petitioning the Ford County District Court in an attempt to secure the right to use portions of 28 tracts of privately-owned land, roughly 143 acres, to complete an electricity transmission line project.

The company is seeking the use of a strip of land 100-feet wide from North Fort Dodge to a new substation south of the existing Spearville substation. The 38 defendants are primarily individuals and family trust managers, but also named are Winter Feed Yard and Coake Farms Feeders.

A hearing at the Ford County District Court scheduled for Sept. 16 at 10 a.m. will determine if the utility has the power of eminent domain which would force the landowners to sell use rights after payments determined by three court-appointed appraisers.

The telephone number listed by Mid-Kansas Electrical Company, a joint venture owned by six southwest Kansas cooperatives including Victory Electric, was answered by voicemail and the call was not returned. The company is represented by Taylor P. Calcara of the Watkins Calcara law firm in Great Bend.

Lyle VanNahman of Spearville, the son of one named property trust owner, alerted the Ford County Commission to the ongoing issue in July and cited frustrations with the plaintiff’s attorneys using hard sell tactics against his mother to sign a contract he believes grossly undervalued the land in question.

Wind power is the “new found gold” of Kansas, but also what he calls “the great pilfering of Kansas” as outside companies build turbines and infrastructure to ship power east but are given local tax breaks, reducing the impact on local schools and civic institutions.

Instead, the county receives “payments in lieu of taxes” at a lesser rate than would be received through regular taxes.

The numerous public meetings held during the development process were equally frustrating, he said, as the plaintiff’s representatives refused to answer questions publicly. Some who have come onto his mother’s property also refused to identify themselves, he added.

“There’s no honor to this, it’s not good, there’s no future in this,” VanNahman said.

The number of holdouts may indicate that VanNahman is not alone in his assessment.

It’s unusual to have so many holding out, attorney John Hamilton of the Hamilton, Laughlin, Barker, Johnson & Jones law firm said. Hamilton represented property owners in Ford, Hodgeman and Edwards Counties when ITC sought eminent domain powers to build a new transmission line. Hamilton is also a member of the Owners’ Counsel of America, an owners-side eminent domain legal resources network.

If the court agrees with Mid-Kansas, three appraisers will determine what payments need to be made. “It’s supposed to be based on fair market value,” Hamilton said. “Look at the property without the line and then the property with the easement. The difference is the compensation.”

Different appraisers can come to widely different values, he said. In the ITC case, the landowners in Hodgeman got the best deal, the Edwards County appraisers were “tight” and the Ford County appraisers were somewhere in the middle.

Currently there are about 400 megawatts of wind generation permits already approved by the County Commission for development in the coming years; a relatively small, local transmission line would likely make it impossible to place wind turbines on the land, and wind turbine payments have brought significant amounts of new money to property owners.

That wind turbine “best use” would be included in the market value of the land, Hamilton said, but in Kansas, owners are not entitled to loss of profits.

If the court agrees with Mid-Kansas’s position, its three appointed appraisers must hold a hearing to hear from both sides as to the value each individual property. After 45 days, the appraisers will make their report and Mid-Kansas will be required to pay the awarded amounts and their appraisers’ fees.

At the end of the process, either side can initiate an appeal if dissatisfied with the result.