Erie Twp. rail plans produce debate over eminent domain: Toledo (OH) Blade, 7/16/06

1800s laws could decide residents' fate

By David Patch

Beyond the shade trees draped over Madge Ausmus' back porch, soybeans grow in fields that have belonged to her family for generations.

On either side of her Erie Township [Michigan] home live relatives whose houses were built over the years on lots split off from the original Burgard homestead along Erie Road.

"This property was ours before Michigan became a state," Mrs. Ausmus said.

Beyond those soybeans lie three railroad tracks, the closest one belonging to the Canadian National Railway. The presence of that CN track is a key to a conflicting - and controversial - vision for the future of Mrs. Ausmus' property and that of her neighbors.

It's a vision whose realization may depend, at least in part, on laws enacted during the 19th century giving railroads the same land condemnation powers that governments possess to build roads and other public works.

U.S. Rail, a short-line railroad operator chartered in Michigan but with offices in Sylvania and rail operations in southern Ohio, is proposing to construct an "intermodal" terminal where freight containers are transferred between trucks and trains on 400 acres along the CN track between Erie and Luna Pier roads.

John Hall, an executive vice president with U.S. Rail, said the site has ideal features for such a terminal: proximity to two I-75 interchanges, room for growth, and direct railroad line access extending all the way to the Pacific Coast.

In particular, those lines stretch to Prince Rupert in Canada's British Columbia province, a port whose development could shave up to five days off the transit time for importing Asian consumer goods into the Great Lakes region.

When fully operational, U.S. Rail predicts the facility will generate up to 700 jobs, with wages ranging from $12 to $28 per hour plus benefits.

But critics question both that forecast and U.S. Rail's financial capability and say the project will bring trucks, noise, and pollution to a peaceful rural community.

"They should move it someplace else. I don't want it here," said Mrs. Ausmus, 77, who as the oldest of 11 siblings was born in a house down the street. She recalled her father "truck-farming" vegetables on the property in bygone years before he took a factory job with Dana to secure a steady income. Since then, she said, various relatives have farmed the family property.

A rail terminal would be a disaster for the area, Mrs. Ausmus said: "Who wants to have that in your backyard - all that noise, all the diesel fumes, and the trucks going in and out? You couldn't live with that."

"I bought this house because it would be my dream home," said Tim Ramirez, who moved in across the street, and several houses down, from Mrs. Ausmus in 2004.

"This will totally lower my property value - it'll be a real eyesore."

What has really irked residents of the area, both said, is the threat of U.S. Rail using decades-old authority granted to railroads to condemn property through eminent domain to build the facility if the company doesn't find willing sellers.

And if the proliferation of "No Eminent Domain" and "Not For Sale" signs along Erie and Luna Pier roads and in the surrounding countryside is any indication, few willing sellers exist.

"I'm upset that this was done so secretively, like we don't have any say-so," Mrs. Ausmus said of U.S. Rail's proposal. "That's what makes it so sad."

The concept of public agencies seizing private land for public purposes, such as roads, airports, and government buildings, is centuries old - so much so that the Fifth Amendment of the U.S. Constitution requires that "just compensation" be provided when government pre-empts private property rights.

Less known is that during the 19th century, states including Ohio and Michigan granted eminent domain authority to privately owned railroads too. The reason for this was so that individual landholders could not obstruct the expansion of the railroads, which were then fast becoming the primary form of transportation across America. Railroads were treated as public utilities, like electricity and gas suppliers who hold eminent-domain power to obtain easements needed to build transmission lines, substations, or pipelines.

While railroads have been eclipsed by motor vehicles as the principal means of transport for people and for many types of goods in North America, their eminent-domain power remains. These powers were perpetuated in Michigan when the state's entire code was overhauled in 1993, and updated in Ohio in 1953.

Linda Oswald, a business law professor at the University of Michigan business school, said she doubts the Erie Township landowners have "any real recourse" against condemnation if U.S. Rail pursues it to acquire their property.

"I feel for them. I understand where their anguish is coming from," Ms. Oswald said. "But terminals are a necessary part of a railroad."

The professor quickly added: "Not that they can't turn to a political solution, and try to sway public opinion."

And that's exactly what local landowners have done.

Residents opposed to U.S. Rail's proposal have formed Erie Neighbors and Residents Against Eminent Domain (ENRAGED), a group that has distributed signs, organized a petition drive, and lobbied local and county officials to oppose the project.

The Erie Township board on Tuesday passed a formal resolution opposing the project "and the eminent domain process," saying it would be detrimental to the quality of life there and a strain on public services. Similar resolutions have been passed by the Monroe County commissioners and several other townships in the county.

"I oppose taking anybody's land like that," said Walt Wilburn, a Bedford Township supervisor who joined his colleagues in passing a resolution supporting their Erie Township neighbors.

"People should not have the right to take property away from the property owners," said Jerry Oley, chairman of the Monroe County Board of Commissioners. The county board passed its resolution on June 27, and Berlin and Frenchtown Charter townships passed their versions last week.

U.S. Rep. John Dingell, (D., Dearborn), Michigan's Democratic U.S. senators, Carl Levin and Debbie Stabenow, and Michigan State Rep. Kathy Angerer (D., Dundee) co-signed letters to U.S. Rail and several public agencies seeking more information about the proposal.

Congressman Dingell told The Blade that, so far, he doesn't know enough to pass judgment on the merits of U.S. Rail's project.

"There appears to be a significant shortfall in the availability of facts to the people," Mr. Dingell said. "All of the government leaders are opposed - I haven't yet found anybody who is for it. Until I know more, I will be incapable of supporting it, considering the local opposition."

Alan Ackerman, a Troy, Mich., attorney who specializes in condemnation cases, said he believes there are chinks in U.S. Rail's eminent-domain armor.

Mr. Ackerman said he questions U.S. Rail's standing as an appropriate "entity" to condemn property in Michigan, an issue that will come up when the company petitions the federal Surface Transportation Board to establish its proposed rail operation in Erie Township.

"The Surface Transportation Board has to find an appropriate public need," said Mr. Ackerman, who has consulted with several of the potentially affected property owners. "If they granted it, we would challenge that. This is a private take."

In response, Mr. Hall said his company has obtained legal opinions supporting U.S. Rail's eminent-domain standing, should the matter come to that.

Critics have questioned building such a facility on farmland when there are numerous vacant industrial sites just a few miles away in Toledo. But Mr. Hall said two years of site research revealed that none of those sites offers the combination of features that the Erie Township location would provide.

Mr. Hall estimated that the terminal will require use of 17 properties in the area. Though most of them have no structures on them, "three to five" are occupied by homes. The project's engineers and designers are expected to attend a "finalization meeting" on Tuesday to determine the exact extent of property U.S. Rail will seek, he said.

U.S. Rail hopes to build the terminal next year, opening in time for the annual autumnal surge in consumer-goods shipments that precedes Christmas.

Toledo-area transportation planners say that on a conceptual level, the U.S. Rail proposal fits well with their visions for establishing the metropolitan area as a major warehousing and logistics hub.

"From the perspective of a transportation professional, I'd say, 'Oh, yeah, this makes sense. This [site] fits the profile for a facility of this magnitude,'" James Hartung, president of the Toledo-Lucas County Port Authority, said, concurring with forecasts that the rail terminal would attract additional development.

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