Wednesday, May 03, 2006

"The Texas Legislature has much to do to protect private property owners."

Private property rights still in jeopardy

May 03, 2006

By Bill Peacock
The Navasota Examiner
Copyright 2006

When the U.S. Supreme Court announced its decision last year allowing the City of New London, Connecticut, to take Suzette Kelo's house for an office park and an upscale residential development, the public - unlike five of the Court's justices - correctly recognized the decision as a frontal assault on private property rights.

As a result, state legislatures around the country began looking for ways to rectify the problem. To their credit, Texas lawmakers were among the first to take action. But even they recognized their work as a stopgap measure during a special session to improve the situation until a more permanent solution could be found.

While most of the public's attention is on school finance, legislative committees and task forces are working behind the scenes to come up with a solution to eminent domain abuse. Though now that the public outcry on this issue is waning, there may be some doubt whether there is any work left to be done.

However, a quick look at a few cases of eminent domain reveals that the issue remains unresolved, and deserves continued scrutiny. Here are three examples.

Harry Whittington, more famous for his recent hunting encounter with Vice President Chaney, owns a city block near the Austin Convention Center. In 2001, the City of Austin decided it wanted to take his land - the problem was that it didn't know why. Only after the condemnation process began did it come up with the idea of a convention center parking garage and chilling plant. Even so, the city convinced a court that it should be able to take the property, and proceeded to build the garage.

However, it turns out that the city didn't actually need the land for a parking garage - it already had a nearby garage with ample space. The city was just loathe to give up the parking revenues it received from leasing spaces in that garage to the general public.

Mr. Whittington successfully appealed the district court's decision, and may still obtain the return of his property - with a parking garage to boot. While this might be seen as a victory for private property rights, in all likelihood the city would have already prevailed in court if it had followed the proper procedures.

Or consider Frank Newsom, who owned property in Harris County that a developer wanted to purchase for a retention pond required for a permit for a new neighborhood development. By building the pond on Newsome's property instead of his own, the developer could build more houses and earn more money, while the Malcomson Road Utility District would benefit from a higher tax base. Unable to convince Mr. Newsome to sell, the developer convinced the district to take Newsom's property.

While the trial court initially found in favor of Newsom, the appeals court overturned part of the ruling and said that this taking was for a public use. While the court did leave open the possibility there might not be a public necessity for this taking, Newsom's property and money are tied up fighting a court case which should have never begun.

Finally, there is the case of FKM Partnership's battle with the University of Houston. After FKM approached the university about the possibility of a partnership in a retail shopping center on FKM's property, the university decided it wanted the property for itself. After at first claiming it needed the property to complete its obligations in creating right-of-way for Texas Highway 35, it later decided it wanted only part of the property to complete the acquisition of its east campus areas.

Again, a trial court found in favor of the property owner. And yet again, an appeals court found in favor of the local government entity, noting that there was nothing wrong with the case that the University couldn't correct by updating its paperwork.

While all of these cases are on appeal and have yet to be finally decided, there is obviously something wrong with a legal system that allows such cases to proceed as far as these have. It is clear the Texas Legislature has much to do to protect private property owners from the overreach of local governments.

Bill Peacock is the director for the Center for Economic Freedom with the Texas Public Policy Foundation, an Austin-based research institute. He may be reached at

Copyright © 2006 The Navasota Examiner