“Joseph and Theresa Schueckler couldn’t understand how their land could be taken from them for a project that wasn’t even approved.
It was bad enough, the couple thought, to lose a portion of their Allegany County hillside forest and pasture to make way for a natural gas pipeline they philosophically opposed. But they still faced losing their land even after the state Department of Environmental Conservation denied a permit for the pipeline last year after ruling the project couldn’t be built safely.
The state’s decision didn’t stop National Fuel Gas from using eminent domain to obtain easements for the project from landowners who didn’t want to sell.
So, the Schuecklers went to court. They lost their first round in state Supreme Court. But earlier this month they were successful in their appeal before the state appellate court in Rochester.
“This appeal … presents a novel question of condemnation law,” Patrick H. NeMoyer, associate justice for the appellate division, wrote in the majority opinion. “Can a corporation involuntarily expropriate privately-owned land when the underlying public project cannot be lawfully constructed?”
NeMoyer wrote, “We answer that question firmly in the negative.”
The case could have ripple effects on a half-dozen or so other similar lawsuits pending by landowners against National Fuel in Erie and Cattaraugus counties.
“When the public project cannot be legally completed, any eminent domain power in connection with that project is necessarily extinguished,” the majority ruled. “To say otherwise would effectively give a condemnor the power to condemn land in the absence of a public project and that would violate the plain text of the state Constitution.””
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Pignataro, T.J. The Buffalo News 26 November 2018.