Category Archives: process & procedure

3 Points from Eminent Domain Pits Property Rights vs. Energy

Background for article: A land owner who was offered  less than $50,000 for mile-long swath of pasture and oak trees that abuts the family cemetery, and a commissioners court awarded more than $600,000.

How the article sets up land owners v. energy:

  • Landowners claim that not allowing a land owner who prevails to be awarded attorney fees “​provides incentives for utilities, pipeline companies and government entities to undervalue properties in eminent domain takings”
  • Energy industry argument…

Eminent Domain Hearing in Nebraska Results in Threats of Civil Disobedience.

State & Pipeline: Keystone XL in Nebraska

What is the hearing about: Whether the pipeline can be granted eminent domain authority

What happened at the 10 hour hearing:

  • Allowing for eminent domain, according to private proeprty rights supporters  would result in protests that  “would make the mass protests that accompanied the Dakota Access Pipeline in North Dakota look like a “dress rehearsal.”

With how many of the landowners has the pipeline reached an agreement? 90% of the landowners have…

Lege Trend. Eminent Domain & Property Owner Compensation. How Does Texas Measure Up?

Compensation & Valuation:

  • TX + 28 states use the Broad Instruction Approach
    • Broad Instruction Approach provides minimal instruction on compensation
  • 17 states use the Factor Based Approach
    • Factor Based Approach specifically lays out what considerations should be followed by the court in determining the fair market value of the land. 
    • Seeks to ensures that relevant information is considered in every condemnation case 

A consideration for Texas:

Adopting “a Factor Based or Specific…

Eminent Domain Laws Across the US. Attorney Fees. Quick Info. How does Texas measure up?

Attorney Fees:

  • TX awards attorney fees if the condemnor doesn’t make a bonafide offer
  • 40 other states award on a broader basis
    • 4 states use as standard of 110% of condemnor’s offer 
    • Colorado uses a standard of 130% of condemnor’s offer 
    • 2 states use a standard of 120% of condemnor’s offer 
    • 2 states use a standard of 115% of condemnor’s offer 
    • 6 states use a standard of any amount over the condemnor offer
    • 1 state uses a standard of “closer to land owner’s value than condemor’s…

Lege Trend. Attorney Fee Awards Green Light with interesting exception.

State: Michigan

Bill language from Michigan: 

 SEC. 6. IF A COURT DETERMINES THAT GOVERNMENT ACTION BY A DEPARTMENT OR AGENCY RESULTED IN A CONSTITUTIONAL TAKING OF PRIVATE REAL PROPERTY AND THAT THE DEPARTMENT OR AGENCY DID NOT COMPLY WITH SECTION 4 IN REGARD TO THE REAL PROPERTY, THE COURT SHALL ORDER THE DEPARTMENT OR AGENCY TO PAY THE PRIVATE REAL PROPERTY OWNER FOR HIS OR HER REASONABLE ATTORNEY FEES AND COSTS. THIS SECTION DOES NOT APPLY IF THE GOVERNMENT ACTION WAS AN IMMEDIATE…

HB 2556 Property Damage Cost Recovery. 4 Points from The Author

  • Property Rights are Sacred
    • ​“As a small business owner and real estate broker in Texas, I know firsthand that property rights are one of the most sacred liberties that Texans enjoy,” Holland said. 
  • Fair Market Value Offers will cut court costs
    • “HB 2556, my component of eminent domain reform, will empower property owners and commission condemning authorities to extend fair market value offers to deserving landowners, additionally saving our state from frivolous administrative appeals costs…

2006 Eminent Domain Reform. Halts Blight Revitalization. 3 Key Pieces of Information. Read the 2017 Legislative Fix.

  • In 2006, Georiga passed eminent domain reform by way of House Bill 1313
  • The problems with HB 1313 from 2006
    • eminent domain used on blighted properties causes a block on a city re-selling the property for 20 years
    • cities can no loner acquire multiple parcels for redevelopment purposes
  • The 2017 legislative fix
    • allow for the creation of an “urban development authority”
    • the urban development authority would be allowed to:
      • eradicate blight and spur economic development
      •  provide…

Peach State Bill Sets Up 2 Step Process for Private Entities & Eminent Domain.

Georgia’s Senate Bill 191  sets up this 2 step process for a pipeline to obtain eminent domain:

  • receive a “certificate of need” from the Georgia Environmental Finance Authority; AND
  • approval by Georgia’s environmental agency 

A late amendment prohbited pipelines in coastal areas, the Georgia Coastal Zone Management Program, to “protect the drinking water.”

Atlanta Journal Constitution | Georgia Senate approves new pipeline limits

4 Bits Intel. West Coast State Bill. Change Attorney Fees Calculation.

State:  California

The current way attorney fees are awarded in eminent domain: Since 1975, attorney fees can be awarded in California for eminent domain if:

  • final offer of compensation was unreasonable
  • the final demand of the property owner was reasonable

Assembly Bill 408 wants to change the standard for attorney fees in eminent domain to: 

  • Attorney fees must be awarded if condemnor’s offer is lower than 90% than the court’s value determination
  • Attorney fees may be awarded if condemnor’s…

5 Bills + 5 Companion Bills. Eminent Domain Reform for Rail Only.

A legislator coalition joined forces to limit eminent domain for high speed rail. Who is involved?

  • Senators Birdwell, Creighton,  Kolkhorst, Perry, & Schwertner
  • Representatives Ashby, Bell, Cook, Schubert, and Wray 

Which eminent domain issues are being addressed?

  • Pre-condementation Access to Property. SB 973 by Creighton/HB 2168 by Bell (Railroad Determination Before Surveys) – prohibits a high-speed rail entity from entering private property to conduct a survey unless the Texas Department…