Archive for the ‘Eminent Domain’ Category
Texas voters will decide in November whether Article I, Section 17, of the Texas Constitution — the “takings clause” that sets forth government’s power of eminent domain – will be amended. Proposition 11 tightens the reins on government’s ability to acquire private property for public use upon payment of just compensation.
The origins of Proposition 11 date to 2005, when the U.S. Supreme Court ruled in Kelo v. City of New London, Conn., that condemning property for purely economic development purposes was constitutional. More surprisingly, the court ruled government could rightly delegate its eminent domain power to private entities. Justice Sandra Day O’Connor’s succinctly summed up public opinion, stating, “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded.”
Texas legislators countered the ruling by adding the Limitations on Use of Eminent Domain statute to the Texas Government Code. The statute holds, in part, that a governmental or private entity may not take private property through the use of eminent domain if the taking: (i) confers a private benefit on a particular private party; (ii) is for a public use that is merely a pretext to confer a private benefit on a particular private party; or (iii) is for economic development purposes, unless the economic development is a secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society. Voter approval of Proposition 11 would put these concepts in the Texas Constitution.
While most takings legitimately benefit the public — widening congested roadways, developing mass-transit rail facilities, building schools for expanding populations, improving detention to reduce flooding — a sporadic wrangling over what constitutes a public use may still remain if Proposition 11 is approved. For example, government will continue to have eminent domain power over blighted areas, but the definition of blighted remains ambiguous. Also not addressed by Proposition 11 are important elements of eminent domain actions, including the manner in which government acquires property and the debate concerning those elements of market value loss that constitute just compensation.
Senate Bill 18, which was not voted on by the House of Representatives, sets forth numerous landowner-leaning provisions dealing with the manner in which government acquires private property. Among other provisions are more strict guidelines concerning good faith negotiations criteria; the creation of a “Truth in Condemnation Procedures Act” that stiffens procedures relating to bona fide offers; and a tightly defined buyback provision. No doubt these issues will be the subject of spirited future debates.
The WSJ reported that Homeowners claimed a victory in New Jersey where a nationwide grassroots effort to stop government abuse of eminent domain power since the misguided decision in Kelo v. City of New London.
“Under that standard, as Sandra Day O’Connor wrote in her dissent in Kelo v. City of New London, any Motel 6 can be knocked down for a Ritz-Carlton. In the Long Branch case, the contracts even ceded the city’s power of eminent domain to the developers, giving private businesses the ability to tell the city when it should confiscate private property. Such flagrant abuse of public power for private purposes troubles most voters. In the wake of Kelo, some 43 states have reformed eminent domain laws to ensure they couldn’t become a tool used casually against local homeowners on behalf of private interests. New Jersey is one of seven states that did nothing. The Garden State’s courts have been more active, however. In 2007, the New Jersey Supreme Court ruled that to qualify for blight, an area must be a detriment to the health, safety and welfare of its residents. Subsequent rulings have adopted this more robust protection of private property, including for the homeowners of Long Branch.”
Belton, TX – The rest stop on Interstate 35 just south of Salado is one of the nicest in Texas, and in the future it may become a symbol people bring up when discussing the rights a landowner has to the groundwater under his property. In legal circles there are differences of opinions about the case involving the rest stop that netted 7KX Investments a $5.88 million verdict against the state in a trial that ended on June 30. Some attorneys believe the case has the potential to be precedent setting in future eminent domain cases involving underground water rights. 7KX, for instance, at first lost underground water rights when its property was condemned by the state, but eventually regained the rights. Unfortunately, it lost access to the water. Others believe the law applied in this case already was in place and that by condemning 27.7 acres of 7KX property the state simply provided the right set of circumstances to apply the law for the first time.
By: Paul A. Romer