Condemnation authorized

Wednesday, May 27, 2009

Marshall County's Board of Public Utilities has told its attorney and engineer to decide when to use the government's authority to install a water main on private property without the owner's approval.

The unanimous decision was reached last week during a board discussion focused on one woman's refusal to grant a utility easement. Without the easement, several other households would not be able to get water service.

MCBPU Attorney Cecilia Spivey raised the issue because of a resident at Milltown who has refused to sign a document so the water pipe can be installed. If the utility's engineer, Bob Ramsey, can't find another way to install the water main, Spivey asked, could she proceed with a condemnation suit in Chancery Court?

Condemnation is an exercise of the government's power of eminent domain, an authority that goes back to common law in England that then said the king can do what needs to be done for the greater good of the people. However, the U.S. Constitution protects Americans against government takings without compensation.

The county's water utility has never had to pay for a right of way for a water line, MCBPU Chairman Rocky Bowden said. Usually, people want water service, or won't prevent their neighbors from getting it.

That's also the case with other water projects funded like this one planned for the Milltown area, according to Lisa Cross, a reprsentative from the South Central Tennessee Development District, the agency that administers grant funds.

Without the needed utility easement, the project would not be extended further in that part of the county, Cross said.

Spivey concurs.

"When they bid out the project and the cost is greater," she said, "they may not extend the water line there.:

Discussion between Bowden, Spivey and the other water board leaders, including County Commissioners Mickey King and Mary Ann Neill, shows that the board's authorization not only gives Spivey and Ramsey power, but the responsibility to balance court costs and payment for the easement against extending service to other people elsewhere in the project.

It's, therefore, possible that they could decide against taking the resident to court, and simply apply the grant money to provide water service to others, according to discussion during the MCBPU meeting on Monday last week.

"We could just stop and then not extend it," Bowden said. "We could do that part later without CDBG."

Community Development Block Grant money is from the federal government. Without it, the waterline at Milltown might not be possible. The grant was received last year.

In addition to making the pipeline extension possible, the grant also provides money that lowers the residents' cost for a water tap. It also pays for the water service line from the tap to homes of residents who meet certain income guidelines.

After the grant money is spent, the utility could return to that part of the then-completed CDBG project and install pipes if the residents are cooperative, Bowden explained. But under those circumstances, the water tap onto the pipeline would cost more and the resident would have to pay for the pipe from the tap to the house.

Now that the attorney and the engineer have been authorized to use their judgment, the following chain of events will to begin.

"They'll get a letter outlining the situation and suggesting that they get legal counsel on whether it's advantageous to sign (a document granting the utility right of way) or not," Spivey said.

"Then we'll get an appraisal to know the value (of the easement) before filing for condemnation" in Marshall County Chancery Court, she continued.

Because the government's power of eminent domain is only limited by a requirement to pay a fair market price for what's being taken, the court will grant a petition for the utility right of way. The only issue to be resolved is the value of the easement.

Without an agreed settlement, a trial would be held in Chancery Court where the civil case is to be resolved only on the issue of how much the utility should pay for the ability to lay a pipe underground through the resident's land.

After explaining the system, Spivey concluded, "It's not neighborly for one person to stop others from getting water, especially when they have sulfur water and given the recent drought."