Tuesday, December 30, 2008

"Texas law allows the condemnation of almost any property for nearly any plausible-seeming reason presented by government officials."

A Tale of Texas Takings


The Volokh Conspiracy
Copyright 2008

The Houston Chronicle has an interesting story about an ongoing eminent domain case where the city of Houston is seeking to condemn property for the benefit of a politically influential developer [HT: Instapundit]:

When finished, the .09-acre patch of land near the Galleria will be the city's smallest park. Too small even for a basketball court, Post Oak Lane Park might be big enough for a game of horseshoes, a few benches and greenery.

Using its power of eminent domain, the city of Houston seized the land for the park from brothers James and Jock Collins last year. Officials claimed there was a "public necessity" for the park in the Uptown area, despite the fact that a much larger one — the 4.7-acre Grady Park — is just two blocks away.

What will the new "pocket park" be used for? That's hard to say. The city has yet to draw up any plans for the land at the corner of Post Oak Lane and San Felipe. In fact, city parks director Joe Turner testified in a sworn deposition last month that his department did not come up with the idea for the park and that he opposed using condemnation powers for its creation.

What the park will provide is a landscaped gateway to an upscale development planned next door, called BLVD Place.

Mayor Bill White and council members insist they condemned the land last year as a matter of good faith to taxpayers. The city needed some of the land to widen San Felipe and will turn the rest into the park.

But documents obtained by the Houston Chronicle show the move also helped BLVD Place developer Ed Wulfe, a major donor to White, seal the deal on a $12.5 million land sale related to his ambitious mixed-use development.

If the Chronicle's description is accurate, this is a typical case of the use of eminent domain for the benefit of private interest groups under a thin veneer of advancing the public interest. The landowners are trying to fight the taking in court. But, as the Chronicle points out, they face an uphill legal struggle because "[p]roving abuse of eminent domain authority could be difficult, legal experts said." I agree with the unnamed experts consulted by the Chronicle reporters. Texas law allows the condemnation of almost any property for nearly any plausible-seeming reason presented by government officials.

You may wonder how this could be. After all, Texas is one of 43 states that adopted a new eminent domain reform law in the wake of the massive public backlash after the Supreme Court's hugely unpopular decision in Kelo v. City of New London.

The answer is that Texas' 2005 law is one of many that purports to constrain eminent domain without actually doing so. Although the new statute forbids takings that transfer property to private parties for "economic development," it allows essentially identical condemnations that promote "community development;" under the new law, virtually any real or imagined benefit to the public can be portrayed as facilitating "community development."

The new statute also perpetuates previous laws allowing state and local governments to declare almost any area "blighted," thereby making it eligible for condemnation in order to facilitate alleviation of the supposed "blight." I discuss Texas' bogus post-Kelo "reform" law on pp. 31-33 of this article, which also analyzes similarly ineffective reforms in many other states.

UPDATE: I suppose I should reiterate that, unlike, in Kelo, much of the condemned land here may end up as part of a publicly-owned facility: a city park. However, some will apparently be used as a "landscaped gateway" for a privately owned development project. If that happens, there would effectively be a transfer of at least some of the condemned land to a private entity, even if the city might continue to own the "gateway" on paper.

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