Saturday, June 16, 2007

"It is not the responsibility of individual property owners to bear all of the costs of these public projects."


Staples: Protecting our property rights

June 16, 2007

Austin American-Statesman
Copyright 2007

Eminent domain is one of the most hotly debated issues in recent memory. Though most Texans agree government must occasionally take property to build roads, water lines, power lines and other public projects, many would likewise agree property owners should be fairly compensated for their loss. In the past few decades, the courts have eroded the right of property owners to be fairly compensated when their property is seized through eminent domain. The Texas Legislature has passed a measure that would restore and protect some of those rights. Every Texan can be proud of House Bill 2006.

The U.S. Supreme Court created much controversy when it said in the Kelo v. City of New London case that property could be condemned for economic development purposes. The Legislature restricted such actions in 2005 and has added more protections in HB 2006. According to the bill, "public use" in Texas means use by "the state, a political subdivision of the state, or the general public." No longer will the government be able to condemn a mom-and-pop business to make way for a high-rise hotel.

Texans have been concerned that their properties were targeted for condemnation before they were given the opportunity to be heard. HB 2006 increases accountability by requiring condemning authorities to hold public meetings and record votes before condemning private property.

A key part of the legislation restricts water and sewer companies from condemning property to gain access to the water rights beneath it. This is an issue of growing concern to Texans as groundwater supplies become increasingly scarce.

Until now, Texans whose land had been taken for a public use, only to see the use abandoned within 10 years, were offered the chance to buy the land back — at fair market value. In most cases, that was much higher than the amount the landowners were originally paid. HB 2006 amends this law to require land to be resold to its former owner for the price paid at the time it was condemned.

For decades, condemning authorities have been required to make a landowner an offer to purchase his or her property before filing suit to get title to the property. The law used to require this offer be made in "good faith." Recently, however, courts have held that any offer will do and that a condemnor has satisfied this obligation with the bare minimum of diligence.

If HB 2006 becomes law, those days are over. It would require condemnors to make offers based on a "thorough investigation and honest assessment" of the land's value. This will reduce litigation and save taxpayers and property owners money.

The bill also addresses the taking of access rights. Texas courts have let condemning authorities escape paying for loss in market value as a result of diminished access as long as the property has access to a public right-of-way. HB 2006 requires compensation be paid for "any diminished access to the highway and to or from the remaining property to the extent it affects the fair market value."

Critics say HB 2006 will cost the government too much money. But it is not the responsibility of individual property owners to bear all of the costs of these public projects. HB 2006 will not open the public treasury up to huge damage awards to landowners; it simply restores some of the protections that have been eroded. We all benefit from improvements to the public infrastructure. HB 2006 ensures the Texans who sacrifice property to build it are treated fairly.

© 2007 Austin American-Statesman:

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