By Lisa Redmond, lredmond@lowellsun.com
BOSTON -- The U.S. Court of Appeals has thwarted James Lichoulas Jr.'s attempt to block Lowell officials from taking much of his Appleton Mills complex by eminent domain.
In a decision issued last week, the federal appeals court ruled that a lower court was correct when it rejected Lichoulas' lawsuit, in which he challenged the city's legal right to take by eminent domain the Appleton properties, which includes a defunct hydroelectric power facility designed to generate electricity from the water flow between the Pawtucket and Hamilton canals.
City councilors voted to take Lichoulas' land in April 2006, paying the property owner $2.5 million as compensation for nearly half of the land in what city planners call the Hamilton Canal District project, including the area slated to be occupied by a $175 million state judicial center. Lichoulas argues that amount was inadequate.
Meanwhile, the Federal Energy Regulatory Commission last March 2008 terminated Lichoulas' license to operate the Appleton Mills hydroelectric power project, as that facility is non-operational and has fallen into ruin along with most of the rest of the dilapidated mill complex.
But Lichoulas argued that the revocation of the license is irrelevant because state law assesses the legality of takings at the time the property is seized. The fact that the license was pulled after the taking cannot "taint the taking," he wrote.
He and his attorneys also have alleged that the Federal Power Act of 1920 prohibits the City Council from using its eminent-domain powers to take the nearly 7-acre swath of land in question because a portion of it was licensed by the Federal Energy Regulatory Commission in 1986 for use as a hydroelectric plant.
In a decision on March 30, however, U.S. District Court Judge Rya Zobel sided with the city and dismissed Lichoulas' federal case outright. Lichoulas filed an appeal with the federal Appeals Court.
The court ruled that "this is not a case where the taking had any effect on the ongoing production of power or where FERC has evidenced any concern. Lichoulas is simply seeking to have the federal court derail a state takings proceeding in which ... he could presumably raise his objections."
As for Lichoulas' objections to the amount he was paid for his property, the federal Appeals Court said that's a matter for state court.
This story appeared in the Lowell Sun on Saturday, February 7, 2009