Wednesday, February 08, 2006

Stall: "Our concern is the use of eminent domain to enrich a concessionaire."


Eminent domain power must have clearer lines


Tyler Morning Telegraph
Copyright 2006

Eminent domain always has been a process involving some controversy, but since a June 2005 United States Supreme Court decision that appeared to relax traditional domain limits, debate has intensified throughout the country.

Through eminent domain, governments have the power to appropriate private property without the owner's consent for public projects such as roads and lakes when the owner of the needed property is unwilling to sell. According to the Texas eminent domain law, the government pays the property owner just compensation for the property it uses eminent domain to acquire.

In Kelo v. City of New London (Conn.), the Supreme Court ruled that local governments also may use eminent domain to seize citizens' private property for economic development. That means the government can take a person's private property and give it to a private developer for an economic redevelopment plan if officials determine that the project would benefit the community as a whole or the government.

Since the ruling, reports of eminent domain abuses have emerged from several states, and some 40 states are reported to be re-examining their laws, and Congress also has indicated concern.

The Washington-based Institute for Justice that worked for homeowners in the New London case argues that state laws should be changed so property can only be seized for public uses such as a park or a school - not urban redevelopment that benefits private developers.

Bert Gall, an attorney with the institute, claims that abuses are widespread. But municipal leaders across the country argue that such charges are false and expressed fear that an emotional backlash to the court ruling is putting at risks an important development tool.

The Texas Legislature responded to the issue during the second called session of 2005 by approving Senate Bill 7 which attempts to narrow the power of government entities from using eminent domain to take private property for economic development. Authored by Sen. Kyle Janice from Houston, the bill went into effect on Sept. 1.

Specific criteria for use of the power is set forth in S.B. 7, and an interim committee is created to study the use of eminent domain.

"The (Supreme Court decision) opened the door for governments to seize private property to benefit private business," Janek said. "This bill will restore and further strengthen the right of Texas property owners to keep their land."

Observers have pointed out, however, that S.B. 7 provided some major exceptions by largely exempting the Trans-Texas Corridor, which would take large portions of land through a wide portion of the state to build a 4,000-mile rail, utility and road system.

David Stall, co-founder of a citizen group opposed to the TTC, said, "We have concerns about eminent domain being used to take excess land. We think the use of eminent domain is something that should be used extremely cautiously to meet immediate needs."

"We certainly recognize the legitimate use of eminent domain where it's required to provide roads and public transportation," he added. "Our concern is the use of eminent domain to enrich a concessionaire."

Numerous other exceptions to the protection of private property rights also are included in S.B. 7, observers note. These leave viable eminent domain for certain other favored economic development projects. The list includes transportation projects, port authority and navigation district projects, water supply, flood control, utilities and waste disposal projects, hospitals, libraries and parks, sports venues approved by voters prior to Dec. 1, 2005, and renewal efforts for slums or blighted areas.

Strong coalitions have been formed in other states to call on state judges and legislators to end eminent domain abuse.

Some in Texas who do not think S.B. 7 goes far enough are reported to be pushing for a constitutional amendment that would put stronger restrictions on the use of eminent domain.

"We think that's absolutely the correct approach," Stall said. Since S.B. 7 is a statutory approach, any bill passed by the Legislature subsequent to that can circumvent it, he added.

No matter how strong the case can be made that property needs to be taken for a necessary public project, there often are tragic cases involving long-term homeowners who simply don't want to give them up. Extending eminent domain to economic development projects is certain to compound the number of such scenes.

A rash of new examples of abuse likely would provide a much stronger drive for a constitutional amendment spelling out some clear eminent domain limits.

┬ęTyler Morning Telegraph 2006