Monday, July 25, 2005

When push came to shove, Legislature let Texas down

State needs real protection from eminent domain abuse

July 25, 2005


The U.S. Supreme Court just put a big "Up for Grabs" sign on everyone's front lawn, and it's a shame that Texas legislators can't bring themselves to take it down.

On June 23, the Supreme Court held that it is perfectly fine, under the U.S. Constitution, to take homes from their rightful owners in Connecticut and transfer the property to a private developer. What was the justification for this action? Office buildings produce more taxes than homes, and the project would lead to "economic development." The decision touched off a fire-storm around the country, including in Texas.

Texans have reason to worry. Hurst, Texas, took eight homes for a shopping mall parking lot, forcing the owners to move out while the spouses of two residents were dying in the hospital. Of the people whose homes were taken, three died and four others had heart attacks during the litigation. Then, within hours of the Supreme Court's decision, Freeport filed condemnation proceedings against two family seafood businesses to make way for a larger, more expensive private marina.

Texans, like most other Americans, were horrified by the Supreme Court's decision. Politicians agreed that something must be done. Eminent domain was added to the special legislative session in Texas. And then ... the effort collapsed.

Legislators agreed in general that they wanted to stop this pernicious practice, but when push came to shove, they just couldn't bring themselves to do it. Not surprisingly, lobbyists from cities and developers have been prowling the halls of the Capitol. So legislators took good legislation and added so many exceptions that the bill won't actually accomplish a thing.

By far the worst exception is to continue to allow condemnations where the justification is that the property is "blighted." That might be OK, if Texas had a definition of blight that actually involved something being wrong with the area. Instead, an area can be called blighted if it has houses on a dead-end street or there's not enough parking ("faulty street layout") and if it is an "economic liability" in the opinion of the local government. Local governments can still throw people out of their homes because they're an economic liability when a shopping mall wants to move in.

In the end, the supposed prohibition on the use of eminent domain for "economic development" will be meaningless, because local governments can just proceed under the blight law and call the area an economic liability. And Texans will still end up with no protection at all.

There is a proposed constitutional amendment that would actually forbid takings for the primary purpose of economic development. Most important, it tells the courts to make their own judgments, not to just rubber stamp whatever the government claims. Right now, courts presume that everything the government says is right and leaves it up to the homeowner to prove otherwise. The constitutional amendment would provide meaningful protection, but the legislators and the lobbyists are working hard to prevent the issue from getting to a public vote — likely because they know it will pass.

Texas needs real reform. And Texans should be telling their representatives that they want actual protection from eminent domain abuse, not a cosmetic statute that looks like an improvement but does nothing at all.

Berliner is a senior attorney at the Institute for Justice ( www.i or www. ) and represents the homeowners in the Supreme Court eminent domain abuse case. She is also the author of "Public Power, Private Gain," the first and only nationwide study of eminent domain abuse.

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