Institute for Justice on eminent domain bill: "I would have expected more from Texas."
August 22, 2005
By Jay Root, Austin Bureau
Fort Worth Star-Telegram
AUSTIN -- Gov. Rick Perry is touting new restrictions on the government's ability to seize land, but some critics say the bill has too many loopholes and doesn't offer enough protections to property owners.
"I would have expected more from Texas," said Dana Berliner, senior attorney at the Institute for Justice, a non-profit public-interest law firm specializing in government condemnation cases. "I would have expected a bill out of Texas that was not riddled with exceptions."
At issue is Senate Bill 7, sent to Perry's desk this week, which is designed to rein in the government's "eminent domain" condemnation powers in the wake of a controversial U.S. Supreme Court decision. The June ruling, paving the way for homes in Connecticut to be razed so developers can build condos, offices and a hotel, clarified that governmental entities can condemn property for economic development purposes.
That sparked a wave of citizen protests and prompted Legislatures in more than 30 states to draft bills aimed at restricting eminent domain powers when used to benefit private interests and economic development.
Texas lawmakers, meeting in special session, passed a bill this week limiting eminent domain, and it's now waiting the governor's signature. Perry applauded the legislation, saying it would ensure "government cannot seize private property simply to generate more tax revenue."
"This bill provides common-sense protection for every private property owner, and I will continue to work with members of the legislature to add further protections in the state constitution," Perry said.
The bill provides a host of exemptions. It has a provision designed to allow Arlington to continue condemning land to make way for the new Dallas Cowboys stadium, for example.
It also does not restrict the Tarrant Regional Water District from using its eminent-domain powers to condemn property along the Trinity River and pave the way for eventual completion of the Trinity River Vision project.
Critics complain that the flood control improvements are designed primarily to create economic development on Fort Worth's north end, displacing long-established businesses and benefitting private developers.
"The people that are doing the Trinity River project are pretty much hell bent on doing it regardless of the impact on small business people," said state Rep. Lon Burnam, D-Fort Worth. Burnam said "ambiguities" in the legislation will have to be worked out in court.
Jim Oliver, general manager of the Tarrant water district, said officials want to negotiate to buy the needed property.
"Condemnation is a very last step," he said. "We intend to negotiate and buy the property that we need. We're about a year away from doing any land purchases. Condemnation is not even on our radar."
The $425 million project is being sold as a flood-control project that will also spark economic development. Oliver said the drainage improvements, including a 1 1/2 mile bypass that will create valuable riverfront property, will have "tremendous economic develop spinoffs." For example, local leaders are touting a proposal that would include apartment complexes, office buildings, restaurants and a 33-acre town lake.
But Oliver said the main purpose of the infrastructure improvements is flood control. And even if Perry signs the newly passed legislation into law as expected, the district can acquire the land it needs, he said.
"We never intended to use eminent domain for economic development to begin with," he said.
However, in May, at the behest of the Tarrant water district, Rep. Charlie Geren, R-Fort Worth, passed a bill that specifically expanded the water district's power allowing it to condemn property for economic development purposes and to use its authority to "promote state or local economic development and stimulate business and commercial activity."
Perry announced he had signed the legislation, House Bill 2639, into law on June 18 -- five days before the watershed Kelo vs. City of New London Supreme Court decision, a ruling that the governor and other state leaders roundly criticized.
Perry spokesman Robert Black said the governor considered the matter a "local issue supported by the local community" when he signed it.
"He certainly had no problem with the bill," Black said.
Geren said the office of U.S. Rep. Kay Granger, R-Fort Worth, asked that he include language expanding the condemnation powers of the water district to cover economic development. He said Granger's office told him it was needed to ensure that federal funding for the project went through.
Granger spokesman Pat Svacina said this week Granger's office never made such a request.
But Geren also said that if Perry signs the new law, it would prohibit the water district from using its powers to condemn property specifically for economic development. Either way, Oliver, the water district manager, said he did not need the language in the Geren bill to go forward with the project.
More broadly, critics say there are enough exemptions in the proposed new restrictions to raise serious questions about its effectiveness. One exemption, for example, allows condemnation to be used for economic development if it's a "secondary purpose resulting from municipal community development or municipal urban renewal activities to eliminate an existing affirmative harm on society from slum or blighted areas."
Berliner, of the Washington, D.C.-based Institute for Justice, which represented the plaintiffs in the Kelo decision, called that a large loophole.
"There is a decent possibility that the community development exemptions will let in all the economic development condemnation they were saying they were trying to keep out," Berliner said.
State Rep. Frank Corte, R-San Antonio, fought for much tougher restrictions during debate on the eminent-domain legislation, including a condemnation moratorium that specifically included the Tarrant water district. He lost that fight but said he'll continue to push for protections to be included in the state constitution.
"I just don't think it was strong enough," he said. "This is about the best we can get at this time. It does allow us to continue to study this issue."
Jay Root, (512) 476-4294
Fort Worth Star-Telegram: