Several people who live along the route of a Kentucky American Water pipeline under construction in Franklin County went to court Friday, questioning the company's right to acquire an easement through condemnation.
Tom FitzGerald, an attorney for the landowners, said his search of Kentucky laws did not turn up one that gives the utility the right of eminent domain for this project.
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He filed a "petition for declaration of rights" in Franklin Circuit Court Friday that asks a judge to rule on the question.
"These individuals don't know whether they can simply refuse the easement, or whether they are obligated to either negotiate one or address the issue in a condemnation action," FitzGerald said.
Kentucky American Water has long asserted that it has the right to condemn property, but seldom uses it.
Company spokesman Brian Wright said Friday that in more than 2,000 cases over the last 19 years, Kentucky American has had to ask a court to condemn property only five times.
Wright said Kentucky American's attorneys had not seen the petition and could not comment. But, he said, the company has agreements from about half the landowners along the 30-mile route, and had hoped to get the others voluntarily.
Ironically, Kentucky American spent several years earlier in this decade fighting the city of Lexington's attempt to acquire the company through condemnation. That attempt failed when a new Urban County Council halted the legal action, and voters overwhelmingly decided not to restart it.
The petition filed Friday lists several laws that give water utilities condemnation powers. But one applies to rights-of-way along roads, another to "any city utility," another to non-profit water associations and a fourth to "any person constructing, maintaining or operating waterworks or pipelines for the supply of water to a municipality."
The petition describes Kentucky American as "a private, for-profit water company selling to multiple water districts and communities at wholesale, in addition to retail customers within and outside of Fayette County." That description, FitzGerald argues, fits none of the laws that authorize eminent domain.
Kentucky American received approval from the Public Service Commission in April to build a $162 million treatment plant and pipeline. The plant is being constructed on the Kentucky River north of Frankfort. Portions of the pipeline also are being laid.
The project already is being challenged in Franklin Circuit Court by a group called Citizens for Alternative Water Supply, which FitzGerald also represents.