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Columbia Gas Transmission, LLC v. 2.510 Acres of Land in the Borough of Swedesboro

United States District Court, D. New Jersey

February 6, 2015

COLUMBIA GAS TRANSMISSION, LLC, a limited liability company of the State of Delaware, Plaintiff,
v.
2.510 ACRES OF LAND IN THE BOROUGH OF SWEDESBORO, GLOUCESTER COUNTY, NEW JERSEY, GARY STECHER, fee owner, and THE COUNTY OF GLOUCESTER, Defendants

For COLUMBIA GAS TRANSMISSION, LLC, a limited liability company of the State of Delaware, Plaintiff: CHRISTINE A. ROY, LEAD ATTORNEY, WATSON, STEVENS, RUTTER & ROY, LLP, FREEHOLD, NJ.

For GARY STECHER, fee owner, Defendant: JOAN S. ADAMS, LEAD ATTORNEY, ADAMS & ADAMS, SWEDESBORO, NJ.

For THE COUNTY OF GLOUCESTER, Defendant: ERIC M. CAMPO, LEAD ATTORNEY, OFFICE OF COUNTY COUNSEL, CLAYTON, NJ.

MEMORANDUM OPINION

HONORABLE JEROME B. SIMANDLE, Chief United States District Judge

This action comes before the Court among six condemnation actions filed by Plaintiff Columbia Gas Transmission, LLC (hereinafter, " Plaintiff" ), seeking to acquire permanent and temporary construction easements across various landowner defendants properties, in order to construct a new 9.6 mile pipeline through the Townships of Logan and Woolwich in Gloucester County, New Jersey. (See generally Compl.) In connection with the Verified Condemnation Complaint filed in each action, Plaintiff sought injunctive relief under the eminent domain authority of

Page 292

the Natural Gas Act, 15 U.S.C. § 717f (hereinafter, the " Gas Act" ), and Federal Rule of Civil Procedure 65, and specifically requested immediate possession of the easements, prior to a final determination of the amount of compensation due to the landowner defendants as condemnees. (See generally Pl.'s Br. [Docket Item 1-4].)

On January 28, 2015, the Court resolved the question of immediate possession in five of the six actions, see Columbia Gas Transmission, LLC v. 1.092 Acres of Land in the Twp. of Woolwich, Gloucester Cnty., __ N.J. __, Nos. 15-208, 15-211, 15-213, 15-216, 15-218, 2015 WL 389402 (D.N.J. Jan. 28, 2015), but deferred determination of Plaintiff's entitlement to immediate possession in this action, as a result of an unavoidable delay in Plaintiff's ability to serve the landowner Defendant Gary Stecher (hereinafter, " Stecher" ).

Following service, the Court scheduled a show cause hearing for February 6, 2015, but cancelled the hearing at the parties' request, in light of the fact that Defendants " 'do not object to the relief sought by [Plaintiff] at this time, namely, possession of the easements condemned,'" and therefore did not intend to appear at the February 6, 2015 show cause hearing. [Docket Item 16.] With the record in this action now closed, the Court turns to Plaintiff's motion. For the reasons that follow, and those set forth in Columbia Gas Transmission, LLC, 2015 WL 389402, at *3-*5, the Court finds Plaintiff entitled to immediate possession of the requested easements across Defendant Stecher's property, and will grant Plaintiff's motion. The Court finds as follows:

1. The Court's prior Opinion in the related condemnation proceedings, see Columbia Gas Transmission, LLC, 2015 WL 389402, at *1-*2, sets forth the detailed factual history of this litigation, and will not be reiterated herein. Rather, for the purposes of the pending motion, the Court notes that on, December 18, 2014, the Federal Energy Regulatory Commission (hereinafter, " FERC" ) issued a Certificate authorizing Plaintiff to construct its proposed pipeline. (See Luis Dec., Ex. A.) In so approving, FERC specifically found Plaintiff's proposed project required for " the public convenience and necessity," in light of the fact that it will " provided needed transportation infrastructure," and based upon the " minimal adverse impacts on [Plaintiff's] existing customers, other pipelines and their captive customers, [] landowners and surrounding communities." (Id.)

2. In advance of FERC approval, Plaintiff has, since 2012, sought to identify the individual properties impacted by its proposed construction, and has engaged in ongoing negotiations in order to purchase the necessary easements. (Compl. at ¶ 14; see also Luis Dec. at ¶ ¶ 16-18 (certifying tat Defendant's property falls within the area of Plaintiff's anticipated construction).) Despite these efforts, Plaintiff has been unable to reach a negotiated agreement with respect to Defendant Stecher's property in Gloucester County, New Jersey. (Id.) Nevertheless, Plaintiff insists that it requires immediate possession of the property, in order to meet the various environmental and contractual restrictions on its construction, and therefore seeks to acquire immediate possession of " a permanent easement and right-of-way, 50 feet in width," along with a " temporary workspace." (Id. at ¶ 5.) However, as stated above, Defendant Stecher does not oppose Plaintiff's request for immediate possession. [Docket Item 15.]

3. In the related condemnation actions, the Court found, upon substantively identical submissions, that Plaintiff had demonstrated an established right to condemn the landowner defendants' properties under

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the Gas Act, 15 U.S.C. § 717f(h), and that preliminary relief in the form of immediate possession was appropriate. See Columbia Gas Transmission, LLC, 2015 WL 389402, at *3-*5. Here, the Court concludes, for the same reasons, that Plaintiff has demonstrated an entitlement to exercise eminent domain over the specified portions of Defendant Stecher's property under the authority of the Gas Act and the FERC certificate. See Id. at *4. Similarly, the Court finds, for the reasons set forth in Columbia Gas Transmission, LLC, 2015 WL 389402, at *4-*5, that the preliminary injunction factors all favor immediate possession, particularly given FERC's issuance of a certificate of public necessity, the minimal harm to Defendant given the Court will direct Plaintiff to deposit funds in the Court's registry, and in light of Plaintiff's assertion that any delay could cost " as much as $157,000 per occurrence," and could result in lost revenues in the amount of $126,000 per day." (Luis Dec. at ¶ ¶ 22, 38.)

4. For all of these reasons, Plaintiff's motion for preliminary injunction will be granted. [Docket Item 1.] An accompanying Order will be entered, together with an Order for Condemnation providing for condemnation, posting of payment into the Registry of Court, and entry onto the premises to perform construction. No determination is made regarding the amount of just compensation to which Defendant Stecher is entitled. For any matter in which the parties do not reach a negotiated agreement, a scheduling conference under Rule 16, Fed. R. Civ. P., will be convened in due course, and such matter will be scheduled, following discovery, for its compensation hearing in accordance with Federal Rule of Civil Procedure 71.1.

ORDER

This matter comes before the Court on Plaintiff Columbia Gas Transmission, LLC's (hereinafter, " Plaintiff" ) motion for preliminary injunction [Docket Item 1]; and the Court having considered Plaintiff's submissions; and the Court noting that Defendant Stecher does not object to the relief requested by Plaintiff's motion, namely, immediate possession of the requested easements across Defendant Gary Stecher's property [Docket Item 15]; and for the reasons explained in the Memorandum Opinion of today's date; and for good cause shown;

ORDERED that Plaintiff's motion for preliminary injunction [Docket Item 1] shall be, and hereby is, GRANTED; and it is further

ORDERED that an Order for Condemnation shall issue.

ORDER FOR CONDEMNATION

This matter having come before the Court on the application of Watson, Stevens, Rutter & Roy, LLP, attorneys for the plaintiff, Columbia Gas Transmission, LLC (" Columbia" ), for an Order determining that plaintiff is duly vested with and has duly exercised its authority to acquire the property rights being condemned, authorizing Columbia to deposit the amount of estimated compensation into the Court's registry pursuant to L. Civ. R. 67.1(a), and determining that Columbia, upon payment of the estimated compensation into Court, be given full possession of the property rights being condemned;

And neither Eric M. Campo, Assistant County Counsel for defendant, The County of Gloucester, nor Joan S. Adams, of Adams & Adams, counsel for defendant, Gary Stecher, having opposed the requested relief set forth above;

And the Court having first considered the papers filed and it appearing that plaintiff is entitled, under the Natural Gas Act, 15 U.S.C. 717f(h), and under the provisions of a Certificate of Convenience and Public Necessity issued by the Federal Energy Regulatory Commission on December 18, 2014 (in FERC Docket No. CP14-17-000) to maintain this condemnation action;

And it appearing that the defendant owner's property appears on the alignment sheets submitted to FERC along with the application and that the certificated 20-inch diameter pipeline, with any appurtenant facilities for the transportation of natural gas, is to be built under or across a strip of land, totaling 2.5 10 acres, of variable width, on defendant owner's lands;

And the Court having then determined that an Order for Condemnation should issue;

And it appearing that Columbia is entitled, under the equitable powers of the Court, to an order for full possession of the property rights condemned so as to allow the construction of the pipeline on defendant owner's property to begin on February 9, 2015; for the reasons stated in the Memorandum Opinion of today's date;

ORDERED AND ADJUDGED as follows:

1. Plaintiff, Columbia Gas Transmission, LLC, is authorized to and has duly exercised power of eminent domain in this action. This Court GRANTS Columbia's an Order for Condemnation of the permanent and temporary easements sought;

2. Columbia is entitled to relief under the equitable powers of this Court and shall receive possession of the property rights being condemned on defendant owner's property identified as Lot 10 in Block 4, as shown on the Official Tax Map of the Township of Woolwich, County of Gloucester and State of New Jersey, as follows:

a. A permanent right-of-way and easement, under and across a strip of land, totaling 2.510 acres, generally 25 feet in width, on defendant owner's lands identified as Lot 10 in Block 45 as shown on the Official Tax Map of the Township of Woolwich, County of Gloucester and State of New Jersey, said strip of land being designated as " Area of Permanent Easement" on Columbia Drawing No. NJ-GL-041.100BC.dwg, dated June 5, 2014 (two pages). A copy of said drawing is annexed hereto as Exhibit A.
b. A temporary construction easement totaling 2.567 acres, said lands being designated as " Area of T.W.S." (2.538 acres) and " Area of A.T.W.S." (0.029 acres), and additional temporary workspace on lands totaling 0.134 acres, said lands being designated as " Area of T.W.S. Within Existing Easement" on Columbia Drawing No. NJ-GL-041.100BC.dwg.

3. Columbia, upon payment of the amount of $33,800 into the Registry of this Court, as directed in paragraph 4 below, shall be entitled to enter upon the permanent and temporary easements condemned in this action;

4. Payment shall be made as follows:

a. Columbia shall remit the above recited amount to the Clerk of the Court for deposit into the Registry of this Court. The Clerk shall deposit the amount received into the Registry of this Court and then, as soon as the business of his office allows, the Clerk shall deposit these funds into the interest-bearing Court Registry investment System (C.R.I.S.) administered by the Administrative Office of the United States Courts as Custodian, pursuant to L.Civ.R.67.1(a)(2);
b. The sum of money so invested in the interest-bearing C.R.I.S. fund shall remain on deposit until further order of this Court at which time the funds, together with interest thereon, shall be retrieved by the Clerk and re-deposited into the non-interest-bearing Registry of the Court for disposition pursuant to the further order of the Court;
c. The custodian shall deduct a miscellaneous schedule fee for the handling registry funds, as authorized by the Judicial Conference of the United States and the Standing Order of this Court dated June 30, 1989, as amended November 30, 1990, and May 19, 2011, of 10% of the income earned on this account and each subsequent deposit of new principal so deposited while invested C.R.I.S.; and
d. A certified copy of this Order shall be personally served, by the plaintiff's attorneys, upon the Clerk of this Court, the Chief Deputy of Administration, Deputy of Operations, or Finance Manager;

5. That plaintiff shall be entitled to receive a certified copy of this Order from the Clerk of the Federal District Court, District of New Jersey, which certified copy may then recorded in a Deed Book at the offices of the Clerk of Gloucester County as evidence and record notice of plaintiff's right to have, hold, use, occupy, possess, and enjoy the permanent and temporary easements, as shown on Exhibit A, for the purposes of laying, constructing, operating, maintaining, repairing, altering, replacing, and removing, from time to time, with full right of ingress and egress, a pipeline appurtenant facilities for the transportation of natural gas;

6. That defendant owner, Gary Stecher, and any and all entities possession or control of the property described in the Verified Complaint herein, shall surrender possession control of the 2.510 acre permanent right of way and easement, and the described temporary easements, as shown on Exhibit A, to the plaintiff;

7. This Court will hereafter establish the schedule for any discovery and proceedings to fix the just compensation to be paid in this matter; and

8. Plaintiff's attorney shall serve a copy of this Order for Judgment by regular mail addressed to counsel who have appeared for defendants Gary Stecher and the County of Gloucester, and by regular mail on all other defendants who did not appear, within seven (7) days of the entry of this Order.


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