Eminent Domain is Needed. How to Stop Land Speculation in Eminent Domain.

A list of why eminent domain is necessary is not something that occurs with frequency. A law professor lists reasons why eminent domain is necessary in Detroit:

  • Eminent Domain worked in the past to build factories that still function
    • Look at the  GM Hamtramck Assembly Plant and the Chrysler Jefferson Avenue North Assembly Plant
    • Detroit has collected hundreds of millions of dollars of property and income tax revenue from the plants and their workers
  • The need of economic development, and the use of eminent domain to achieve economic success
    • Even if you can’t use eminent domain for economic development, eminent domain can be used to remedy blight. Tomato, to-mah-to. Potato, po-tah-to.
    • Land speculators have been buying up property
  • He proposes eminent domain for economic development, if the land owned by speculators.  

Refreshing recollection: There has been an FBI investigation into land speculation in right of way purchases in North Texas. Information Intelligence

Detroit News

Billboards & City of Houston In Talks

Billboards and the City of Houston have a long history. Like a love affair that thrives on disagreements. The love lasts, but it is a roller coaster.  

New movement in this relationship. The City & 3 billboard companies (Outfront Media, SignAd &  JGI) are in talks to address what the city calls, billboard blight. The bargaining chip offered by the CIty: 

  • Voluntary removal of billboards- Keep 1 sign for the next 20 years, if you remove 2 signs.

 

The Houston Chronicle goes on to talk about bill board statistics in Houston:

  • In 1980 there were 10,000 billboards
  • Today it is 1,500
  • 1,090 within Houston City Limits
  • 950 protected by federal laws and regulations
  • 140 signs are unprotected and viable for the city negotiations.  

Legal Trend Meets LegislativeTrend: Land Owners Challenge Constitutionality. Later Challenge Eminent Domain.

Providing great material for 2015 bills in Texas, The Nebraska Supreme Court, making reference to Denbury, issued an opinion on the constitutionality of a pipeline certification.  Read More: Information Intelligence 

The Court said we don’t like it, but that pesky super majority threshold to declare the statute unconstitutional isn’t met, so it’s not officially unconstitutional. Pipelines declared victory.

Here’s the kicker- these same judges who referenced Denbury, and opined about private property rights, will hear eminent domain suits, once eminent domain proceedings begin. KMA Land  AP via Star Telegram  Lincoln Journal Star

Legal Trend: NE SCT Clears Way for Pipeline. Mentions Landowners Success in Denbury.

The landowners trying to stop Keystone XL in Nebraska were dealt a blow in the Friday, January 9th, ruling of the Nebraska Supreme Court. Landowners won a majority of the Court, but not  super majority. Highlights:

  • Pg. 38: the NE Court cites Denbury.
    • Writing: ” The Texas Supreme Court has addressed this issue in the context of pipeline carriers.150 It reversed a court of appeals’ decision that a property owner could not challenge a common carrier certification by a pub- lic service commission.”
    • “It held that Texas statutes authorizing eminent domain power for common carriers do not include the owner of a pipeline built for the owner’s exclusive use. ” 
  • The NE Court ruled on constitutionality of a statute that transfered power to the Govenror and allowed expedited permitting for pipelines. Under the statute, the Governor could directly authorize eminent domain for a project.
    • A majority of the Court ruled the statute unconstitutional, BUT
    • The NE Constitution requires a super majority to overturn statutes. 
    • No supermajority existed to find the statute unconstitutional. 
    • The Court opines that citizens deserve a hearing on the merits- the transfer of power and eminent domain. 
  • The NE Court did not rule on eminent domain

WSJ Nebraska Supreme Court Opinion   

Response from Landowner Attorneys: The Fight for Property Rights Continues

TPPF: Eminent Domain Recommendations 2015

TPPF’s legislative recommendations for eminent domain include:

  • Grant property owners the right to repurchase their property if the initial use of a property acquired from them through eminent domain is not the public use for which the property was acquired.
  • Ban the initial use of property acquired through eminent domain for any use other than the use for which it was acquired. 
  • Change all references to in statute to “public purposes,” “public purpose,” or simply “purpose” when authorizing the use of eminent domain to “public uses” or “public use.” 
  • The Texas Real Private Property Rights Preservation Act should be amended to apply to municipalities.

  • The numerical threshold of what qualifies as a taking under the Act—
    a 25% reduction of the market value of the affected private real property—is an arbitrary number that should be reduced or eliminated.

  • Condemnors should have the ability to issue waivers as an alternative to financial compensation. Those waivers should specifically mention which property rights are being reinstated per the waiver. Doing so will allow the waiver to “run with the land” for future owners, as well as prevent munici- palities from spending more.

The next 3 recommendations apply to common carrier and Denbury Issues:

  • Amend statute to shift the burden of proof in all property rights cases from the land owner to the condemnor.

  • Reduce judicial deference to the decisions of executive agencies and local governments.

  • Restore the constitutional right to both own and use property. Current case law, as held by the Texas Supreme, says, “Property owners do not acquire a constitutionally protected vested right in property uses.” 

  TPPF

5 Eminent Domain Bills Filed Thus Far

On par with bill filing rates in 2013, 5 eminent domain related bills have been filed to restrain or prohibit the use of eminent domain or the the taking of private property:

  • SB 178  Relating to prohibiting the use of eminent domain to take private property for recreational purposes.
  • HB 565  Relating to powers of private toll project entities.
  • HB 572 Relating to the sunset review of regional tollway authorities.
  • HB 264  Relating to procedures for asserting taking claims against certain governmental entities.
  • SB 234 Relating to the creation and operation of a park and recreation district in counties that share a border on the San Marcos River and to the authority of the district to collect fees; creating an offense and providing penalties.

Anticipated bill filings: Bill responding to the summer 2014 Railroad Commission rulemaking, which was a response to 2013’s HB 2748, which was a response to the Denbury case. 

Landowners Displeased by Being Labeled Willing Sellers

Landowners in the path of the Keystone XL pipeline, including those who have entered into easements, raise concerns about how landowners are labeled by condemning entities. The list of what not to say about landowners is:

  • Calling landowners “willing” misrepresents the facts 
  • Just because they entered into an easement doesn’t equal support for the project
  • Landowner fears of dangers related to pieplines increase over time 

Unhappy landowners publish media pieces, host concerts featuring Willie Nelson, and sue.

Roll Call

Condemning Intangible Property

The Department of Transportation is condemning intangible property by amending it’s rules. Connecticut’s Department of Transportation is condemning bus routes used by private bus companies, because the state has a new bus plan to roll out. 

The private transportation companies have sued. The bus routes operate with a CCN from the Department of Transportation.

The first judge to hear this case said the Dept. of Transportation has proper authority to condemn this intangible property because the CCNs fall within “land, building, equipment and facilities.”

Hartford Courant

Cattle Raisers Assoc. Eminent Domain Policy

Texas and Southwestern Cattle Raisers Association provided No Texas High Speed Rail it’s policy on eminent domain. TSCRA eminent domain policy is:

Eminent Domain Fairness

WHEREAS, it is recognized that the exercise of eminent domain powers is a valid governmental function; and
WHEREAS, it is recognized that there have been abuses by governmental and private entities possessing eminent domain powers; and
WHEREAS, the exercise of eminent domain should be appropriately limited and subject to the strict scrutiny of Texas courts; and
WHEREAS, actions to compel the taking of private property under law should
be transparent and subject to review; and
WHEREAS, it is essential that property owners be fully compensated and treated with fairness when forced to relinquish property rights; now, therefore, be it
RESOLVED, that TSCRA supports legislation to amend the Texas Constitution and other laws to ensure fair treatment of property owners by condemnors by:

1. Providing the landowner with a written statement or certificate of the condemnor’s right to exercise eminent domain as well as a copy of the condemnor’s resolution authorizing the taking of the landowner’s property and its letter to the Texas Comptroller registering the right of eminent domain;

2. Requiring advance written notice and complete information be given to the property owner regarding the project and the rights of the property owner before any negotiations commence;

3. Requiring that the condemnor negotiate in good faith and make a good faith offer in an amount designed to induce the voluntary transfer of property rights based on appraised fair market value of the property and damage to the remainder;

4. Requiring that the condemnor furnish to the property owner the appraisal and the form of easement agreement; and include the terms of the easement in the legal adjudication of the condemnation.

5. Providing for compensation for all losses suffered by the property owner, including the market value of the property taken, damage to the remainder, cost to cure, and diminution of access;

6. Providing for payment by the condemnor to the property owner of all costs and expenses, including attorney’s fees, when the condemnor misuses the legal process or unnecessarily threatens the interests of private property owners;

7. Providing that the condemnor pay all costs and expenses, including attorney’s fees, to the property owner when the award by the special commissioners or the court is greater than the condemnor’s original offer;

8. Providing written notice of the condemned property owner’s option to reacquire the condemned property, or property conveyed in lieu of condemnation, and all associated property rights, including mineral and groundwater rights, for the price paid by the condemnor if the original project causing the condemnation does not progress or is not completed within a reasonable time;

9. Requiring advance written notice to private property owners of the intent to survey or access the property and secure such consent in writing before entering the property;

10. Providing the landowner with an indemnity, proof of insurance, or written assurance that any damages occasioned by the survey or other activities, including construction, on the property will be the responsibility of the condemnor;

11. Requiring the condemnor to take full responsibility for themselves and contractors, including reasonable measures to monitor all gates, cattle guards, and fences securing livestock and repair or replace any such gates, cattle guards, and/or fences that are damaged;

12. Prohibiting access beyond the proposed and final condemnation area for unauthorized purposes;

13. Requiring that the condemnation will specifically reserve to the condemnee all rights to groundwater and minerals unless the taking is specifically designated for the taking of groundwater pursuant to Texas law;

14. Ensuring that the condemnor limit the width of any temporary or permanent easement to the minimum essential for the proposed project, restore any surface area and vegetation, and take steps to prevent and/or eliminate the invasion of noxious plants;

15. Requiring the condemnor to pursue alignments along existing right of ways of other utilities and along property boundaries to minimize damages to the landowner.

16. Requiring pipeline companies to adhere to objective routing standards similar to those in place at the PUC for power lines and requiring pipeline companies to receive approval from the RRC for the proposed routing through a contested case hearing.

17. Requiring the condemnor to provide condemnee with an estimate of reasonable attorneys’ fees required to evaluate the offer and proposed taking along with the appraisal and make an additional offer to pay this amount in a final settlement.”