Proposed Texas constitutional amendment still leaves "wriggle room" for private developers.
Ruling spurs Texas, others to try to boost property rights
June 28, 2005
By JESSICA LEEDER
The Dallas Morning News copyright 2005
Lawmakers in Austin and across the country are moving to rein in eminent domain authority after last week's Supreme Court decision that broadened government's authority to seize property for economic development.
Republican lawmakers in the Texas House and Senate introduced companion versions of a constitutional amendment that would prohibit eminent domain seizures purely for economic development.
In Washington, Sen. John Cornyn, R-Texas, offered federal legislation that also would limit eminent domain. And officials say at least four other states are considering new restrictions.
"We need to restore the power of eminent domain to public use and not private use," Mr. Cornyn said.
Last week, a divided Supreme Court ruled on a case involving a development in New London, Conn., granting local governments broad power to seize property for the purpose of generating tax revenue.
However, the court also went out of its way to note that its decision doesn't preclude state governments from banning or restricting eminent domain – the power of the state to seize private property without the owner's consent.
Even so, the ruling caused widespread fear that the table had been tilted too much toward developers who, like the Dallas Cowboys now acquiring land in Arlington, seek government's help in obtaining prime real estate for their projects.
That fear might result in a national movement to limit powers of eminent domain.
Larry Morandi, a land use expert at the National Conference of State Legislatures, said he has received queries from legislative staffers in four states other than Texas looking to restrict use of eminent domain: Idaho, Oklahoma, New Jersey and Virginia. On Monday, Missouri Gov. Matt Blunt announced the creation of a special task force to study eminent domain laws.
Limits or ban
Earlier this year, likely in anticipation of the court decision, lawmakers in Utah and Nevada passed laws limiting the use of eminent domain, Mr. Morandi said. In 2004, lawmakers in about a dozen states attempted either to do the same or to ban eminent domain altogether. Only Colorado was successful. In Georgia, an attempt to ban the practice failed.
Mr. Morandi predicts additional attempts when legislatures reconvene across the country in 2006.
Still, critics of the proposed amendments warn that they may not sufficiently protect homeowners.
The memory remains vivid for Jeff Molenburg: sitting helpless and enraged on the curb while a bulldozer razes the home where he raised his family for 18 years. He's never watched the videotape he made to document the most frustrating event of his life. He doesn't have to. "You still dream about it years later," Mr. Molenburg said.
Nearly a decade ago, he and 125 homeowners in the Richland Park East subdivision in Hurst were forced to rebuild their lives after their homes were seized to make room for North East Mall's expansion. Even though most residents were paid fair market value for their properties, Mr. Molenburg said, he's still stewing over the process, which felt unjust.
Some Arlington homeowners are feeling the same way about the Cowboys' new stadium.
Arlington has bought about a dozen properties needed for the 75,000-seat stadium, and the City Council was expected to approve the purchase of 10 more Tuesday night.
But officials also have identified 51 properties that they are willing to take by eminent domain.
Dana Berliner, a senior attorney at the Institute for Justice and one of the lawyers who represented homeowners in the Supreme Court case, said the language in the proposed Texas constitutional amendment leaves "wiggle room" and may not stop governments from invoking eminent domain for economic development.
"Texas certainly has been a place where there has been some significant abuses of power," Ms. Berliner said, citing the Hurst case, which she says was one of the worse condemnation cases she's ever seen. "It's a place that needs more protection than it's got right now."
While the issue is not on the legislative agenda for the special session in Austin, a spokeswoman for Republican Gov. Rick Perry said that he is concerned about personal property in Texas and willing to examine the issue.
Rep. Frank Corte Jr., R-San Antonio, introduced the eminent domain measure on Monday. He said such powers should be used only for projects such as water lines, roads, electricity development and similar public works.
It's "totally wrong" to take someone's home from them in order to turn over the land to another private owner for redevelopment, he said.
"I think that goes against what our founding fathers fought for in defense of their homes," he said. "I think it goes against what Sam Houston and Davy Crockett fought for in Texas."
Staff writers Todd Gillman in Washington, Karen Brooks in Austin and Jeff Mosier in Arlington contributed to this report.
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