Monday, February 02, 2009

"If we’re going to amend the constitution, let’s get it right."

EMINENT DOMAIN: Time to get property rights right


Roy Shockey
Fort Worth Star-Telegram
Copyright 2009

As things heat up in the 81st session of the Texas Legislature, no topic is likely to get more attention than private property rights. Gov. Rick Perry has come down in favor of a constitutional amendment to address the subject that will doubtless be a touchstone in the impending dogfight between the governor and Sen. Kay Bailey Hutchison for the 2010 Republican gubernatorial primary.

The hoopla stems from a 2005 U.S. Supreme Court decision, Kelo vs. City of New London, Conn., which cleared the way for government agencies to seize private land for commercial development if such development is in the public interest. In essence, a city can legally take the land your house sits on and let someone else build a mini-mall on it if the mini-mall will generate more revenue for the city, thereby establishing public interest.

We’ve seen examples of such seizures in our own back yard. The city of Hurst used eminent domain to oust more than 100 homeowners to expand North East Mall. More recently, Arlington did the same to acquire the land for the new Cowboys stadium.

No one suggests that Hurst or Arlington, or any government agency, seizes private property without compensating landowners. The term used whenever compensation comes up is "fair market value." But, answer this: How does one establish fair market value when you have a governmental agency on one side with full police and condemnation powers and a private property owner who doesn’t want to sell on the other?

In defense of our lawmakers in Austin, they responded to the Kelo decision by passing legislation, but the law has loopholes any first-year law student could maneuver through with ease.

One exception says that private property can still be taken for economic development if the development eliminates "blight." Who’s going to define blight? Would you turn a pack of lawyers with a dictionary loose on your private property rights?

Another concern is the issue of diminished access to one’s property, which often applies if only a portion of an owner’s land is seized as when expanding or acquiring right of way for roads.

The governor’s plan doesn’t call for addressing this point in a constitutional amendment. Texas’ 400,000-plus farm families may be adversely affected if this is left open for future interpretation. After all, how does one determine fair market value for a strip of right of way? What if loss of that strip reduces the usefulness of the entire piece of property?

Speaking of right of way, there’s the added issue of private companies building toll roads on a for-profit basis. How will land for those projects be acquired and how will the property owners be protected and compensated?

An amendment to the Texas Constitution should plug loopholes, answer questions and protect the rights of Texas property owners. But if we’re going to amend the constitution, let’s get it right.

  • Let’s clearly define what is meant by the term public use and spell it out in writing.
  • Let’s eliminate the "blight" exception that enables the wealthiest to prey on those who have the least.
  • Let’s establish guidelines for compensation whenever property is seized for legitimate public use under the new statute.
  • Let’s address the issue of diminished access so our retained property values and access will be protected.
  • Let’s put the burden of proof in "public use and necessity" disputes on the back of government instead of where it is now — on the shoulders of private citizens whose property is being targeted.

Davy Crockett, in a letter dated January 1836, two months before the Alamo, wrote that Texas has "the best land and the best prospects for health I ever saw." What was obvious then is still true today.

Those fortunate enough to own a piece of Texas deserve to have their property rights protected by its laws.

Roy Shockey of Keller is a member of the Star-Telegram’s 2009 Community Columnist Panel.

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